ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 August 2019

	DOCKET NUMBER:  AR20180012944


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); however, the Army Board for Correction of Military 
Records (ABCMR) conducted a substantive review of this case and determined it is in 
the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states he hopes that after 50 years he might have his discharge 
upgraded.

3.  The applicant enlisted in the Regular Army on 2 November 1964.

4.  The applicant was convicted by civilian authorities on 3 March 1966 of second 
degree burglary.  He was sentenced to confinement for two months at the Indiana State 
Farm.

5.  A Fort Riley (FR) Form 437 (Mental Hygiene Consultation), dated 19 May 1966, 
shows the applicant was diagnosed with antisocial personality, chronic, moderate, 
manifested by being constantly in trouble.  Further action was left to judicial or 
command decision.

6.  Before a special court-martial on 26 July 1966, at Fort Riley, Kansas, the applicant 
was found guilty of being AWOL from on or about 7 January 1966 through on or about 
12 January 1966, for being AWOL from on or about 27 January 1966 through on or 
about 19 February 1966, and for escaping from lawful confinement on or about 31 May 
1966.  The court sentenced him to reduction to the rank/grade of private/E-1, 
confinement at hard labor for six months, and forfeiture of $62.00 pay per month for six 
months.

7.  The applicant was notified on 24 September 1966 of his immediate commander's 
intent to initiate separation actions against him under the provisions of Army Regulation 
635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, 
Conviction by Civil Court, AWOL, Desertion), by reason of misconduct.

8.  The applicant acknowledged receipt of the proposed separation notification on 
30 September 1966 and acknowledged that he:

*	had been afforded the opportunity to be represented by counsel
*	elected not to submit statements in his own behalf
*	may be deprived of many rights and benefits as a Veteran under both Federal 
and State law
*	may encounter substantial prejudice in civilian life if he were issued a general 
discharge

9.  The applicant's immediate commander formally recommended the applicant's 
separation from service on 30 September 1966, under the provisions of Army 
Regulation 635-206, based on his conviction by a civil court.

10.  The separation authority approved the recommended discharge on 31 October 
1966, and directed the applicant’s reduction to the lowest enlisted grade and the 
issuance of a DD Form 258A (Undesirable Discharge Certificate).

11.  The applicant was discharged on 23 November 1966.  The DD Form 214 (Armed 
Forces of the United States Report of Transfer or Discharge) he was issued shows he 
was discharged under the provisions of Army Regulation 635-206, in the rank/grade of 
private/E-1, and his service was characterized as UOTHC.

12.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct, the diagnosis of a personality 
discorder, the reason for his separation and whether to apply clemency.  The Board 
found insufficient evidence of in-service mitigating factors for the applicant’s serious 
misconduct and the applicant provided no evidence of post-service achievements or 
letters of reference in support of a clemency determination.     Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found relief 
was not warranted.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.



	  
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.

ADMINISTRATIVE NOTE(S):

Not Applicable



REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice.  
This provision of law also allows the ABCMR to excuse an applicant's failure to timely 
file within the three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets 
forth the basic authority for the separation of enlisted personnel.  This regulation 
provides that:

   a.  An honorable discharge is a separation with honor and entitles the recipient to 
benefits provided by law.  The honorable characterization is appropriate when the 
quality of the member's service generally has met the standards of acceptable conduct 
and performance of duty for Army personnel or is otherwise so meritorious that any 
other characterization would be clearly inappropriate.

   b.  A general discharge is a separation from the Army under honorable conditions.  
When authorized, it is issued to a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

3.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the 
separation of enlisted personnel for misconduct.  Section III (Conviction by Civil Court) 
of this regulation prescribes the standards and procedures for processing cases of 
individuals who, during their current term of active military service, have been initially 
convicted or adjudged juvenile offenders by a domestic court of the United States or its 
territorial possessions, or convicted by a foreign tribunal.  If discharge is desired and the 
individual is not physically in the custody of the civil authorities, a recommendation for 
discharge may be submitted to Headquarters, Department of the Army.  It provided that 
an undesirable discharge was normally considered appropriate for members separated 
under this regulation.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records may grant clemency regardless of the court-martial 
forum.  However, the guidance applies to more than clemency from a sentencing in a 
court-martial; it also applies to any other corrections, including changes in a discharge, 
which may be warranted on equity or relief from injustice grounds.  

	a.  This guidance does not mandate relief, but rather provides standards and 
principles to guide Boards in application of their equitable relief authority.  In 
determining whether to grant relief on the basis of equity, injustice, or clemency 
grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn 
testimony, policy changes, relative severity of misconduct, mental and behavioral health 
conditions, official governmental acknowledgement that a relevant error or injustice was 
committed, and uniformity of punishment.  

	b.  Changes to the narrative reason for discharge and/or an upgraded character of 
service granted solely on equity, injustice, or clemency grounds normally should not 
result in separation pay, retroactive promotions, and payment of past medical expenses 
or similar benefits that might have been received if the original discharge had been for 
the revised reason or had the upgraded service characterization.

ABCMR Record of Proceedings (cont)	 AR20180012944

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