ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  2 May 2019

	DOCKET NUMBER:  AR20180016524


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction 
of Military Records (ABCMR) decision promulgated in Docket Number AR20050008585 
on 22 February 2006.  Specifically, he requests an upgrade of his under other than 
honorable condition (UOTHC) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge or Dismissal from the 
Forces of the United States), dated 16 October 2018 

FACTS:

1.  Incorporated herein by reference are military records that were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Number 
AR20050008585 on 22 February 2006.

2.  The applicant's DD Form 293 contains a typed statement at item 8 (Issues), in which 
a friend of the applicant's attests to the fact that the applicant is a veteran, great friend, 
fantastic neighbor, and all-around great guy.  This friend also mentions that the 
applicant received the Medal of Honor and the applicant's medals can speak to what 
kind of person he is.  This statement is considered a new argument not considered by 
the Board in its initial consideration of the applicant's request.  Therefore, it will be 
considered by the Board at this time.

3.  The applicant enlisted in the Regular Army on 13 January 1972.

4.  The applicant's record contains a DA Form 20B (Insert Sheet to DA Form 20 
[Enlisted Qualification Record]) that shows:

	a.  Before a Special Court-Martial convened by Headquarters, 1st Support 
Command (Corps) on 12 March 1973, the applicant was convicted of wrongful 
possession of marijuana, on or about 31 January 1973.

	b.  Before a Special Court-Martial convened by Headquarters, 1st Support 
Command (Corps) on 13 June 1973, the applicant was convicted of violating a lawful 
general regulation and failing to obey a lawful order, each on 8 April 1973, and of being 
absent without leave (AWOL) from on or about 8 April 1973 through on or about 18 April 
1973.  His sentence included his confinement at hard labor for five months. 

5.  The applicant's immediate commander notified that applicant that he was initiating 
actions to separate him from service under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 13, by reason of unfitness.  The 
notification memorandum is not available for review.

6.  The applicant consulted with counsel on 17 September 1973 and acknowledged 
receipt of the proposed separation notification.  He was advised of the basis for the 
contemplated separation action and its effects, the rights available to him, and the 
effects of a waiver of his rights.  He further acknowledged he understood he could 
expect to encounter substantial prejudice in civilian life in the event a general discharge 
was issued to him.  He waived personal appearance before, and consideration of his 
case by, a board of officers.  He declined to make a statement in his own behalf.

7.  The applicant's immediate commander formally recommended his separation from 
service under the provisions of Army Regulation 635-200, Chapter 13, by reason of 
unfitness.  The separation authority approved the recommended discharge and directed 
that the applicant be issued an Undesirable Discharge Certificate.

8.  The applicant was discharged on 20 September 1973.  His DD Form 214 (Armed 
Forces of the United States Report of Transfer or Discharge) confirms he was 
discharged under the provision of Army Regulation 635-200, Chapter 13, his service 
was characterized as UOTHC, and he was issued an Undesirable Discharge Certificate.  

9.  The applicant's record is void of evidence that confirms he was awarded the Medal 
of Honor [Congressional Medal of Honor]. 

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

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity; the applicant had limited creditable service, no wartime service 
and no mitigating circumstances for the misconduct. The Board agreed that the 
applicant’s discharge characterization is appropriate for the misconduct.

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 sets forth the policy and prescribes the procedures for the 
administrative separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b provides that 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.

	c.  Chapter 13, in effect at that time, applied to separation for unfitness or 
unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included 
frequent incidents of a discreditable nature, sexual perversion, drug abuse, an 
established pattern of shirking, failure to pay just debts, failure to support dependents, 
and homosexual acts.  When separation for unfitness was warranted, an undesirable 
discharge was normally considered appropriate.

3.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180016524

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