ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:  9 May 2019
DOCKET NUMBER: AR20190003075


APPLICANT REQUESTS:  The applicant requests

*	upgrade of his general under honorable conditions discharge to an honorable 
discharge
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge)


FACTS:

1.	The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records 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 was a specialist (SPC)/E-4 at the time he received a court- 
martial because of speeding tickets, which was his bad conduct.

3.	On 29 August 1960, at the age of 17 years old, the applicant enlisted in the Regular 
Army for a term of 3 years.

4.	On 31 December 1962, he was convicted by summary court-martial for one 
specification for wrongfully exceeding the speed limit by driving an automobile 57 miles 
per hour (mph) in a 45 mph speed zone on a North Carolina highway. He was 
sentenced to reduction to private first class (PFC)/E-3 and a forfeiture. The convening 
authority approved only so much of the sentence as provided for the reduction to PFC 
and ordered it executed. On 5 June 1963, the case was legally reviewed by the 82nd 
Airborne Division, Office of the Division Judge Advocate, Fort Bragg, NC.





5.	On 3 April 1963, the immediate commander initiated a certificate of unsuitability for 
reenlistment against the applicant under the provisions of AR 635-200 (Personnel 
Procurement – Army Reenlistment Program), paragraph 8c. The commander states the 
applicant had a record of habitual misconduct as evidenced by an Article 15, Uniform 
Code of Military Justice (UCMJ) (unavailable for review) and three delinquency reports 
for driving violations within a period of six months. The applicant acknowledged that he 
understood the allegations made by his commander and elected not to make a 
statement.

6.	The chain of command recommended approval and on 27 April 1963, the Assistant 
Adjutant General for the 82nd Airborne Division, Fort Bragg, NC approved the certificate 
of unsuitability for reenlistment for the appropriate authority.

7.	His service record shows in:

*	Appointments, Promotions, or Reductions: on 26 March 1963, he was convicted 
by civil court and reduced from PFC to private two (PV2)/E-2) (circumstances 
unknown)
*	Record of Assignments: he received all excellent ratings for conduct and 
efficiency with the exception of the period of 17 August 1961 to 30 August 1963; 
he received unsatisfactory ratings
*	Remarks: "Not recommended for further service"
*	He was awarded and authorized Medals, Decorations, and Citations:

*	Parachutist Badge
*	M-16 Rifle Expert Marksmanship Qualification Badge
*	M-60 Machine Gun Expert Marksmanship Qualification Badge
*	M-1 Rifle Sharpshooter Marksmanship Qualification Badge

8.	On 30 August 1963, the applicant was released from active duty accordingly. His 
service was characterized as an under honorable conditions (general) discharge. He 
completed 3 years and 2 days of total active service. He was transferred to the U.S. 
Army Reserve Control Group (I-18), Fort Bragg, NC, with a service obligation until
28 August 1966. His DD Form 214 shows and he was awarded or authorized the 
Parachutist Badge. On 31 August 1966, he was discharged from the USAR Control 
Group (Standby) by reason of ETS.

9.	The applicant states he was a specialist (SPC)/E-4 at the time he received a court- 
martial because of speeding tickets, which was his bad conduct. The record shows, he 
enlisted at the age of 17 years old and was convicted by summary court martial for 
driving at a speed over the posted speed limit; driving 57 mph in a 45 mph speed zone.. 
The applicant served 36 months of his 36 months contractual obligation.



10.	AR 635-200, paragraph 8c, prescribed procedures for separating members who 
were untrainable, or unsuitable for military service. When discharge under other 
procedures is not warranted, action will be taken to bar the enlistment or reenlistment of 
individuals with record of habitual minor misconduct whose conduct and efficiency 
ratings warrant a general discharge but do not warrant an honorable discharge.

11.	In reaching its determination, the Board can consider the applicant's petition and his 
service record in light of the published DOD guidance on equity, injustice, or clemency.

12.	In regards to the applicant's request for a personal appearance, AR 15-185, states 
an applicant is not entitled to a hearing before the Board; however, the request for a 
hearing may be authorized by a panel of the Board or by the Director of ABCMR.


BOARD DISCUSSION:

After review of the application and all evidence and in addition to the administrative 
notes found by the analyst of record to add the applicant’s qualification badges, the 
Board determined that there is sufficient 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 found the 
statement, evidence of previous honorable service, and honorable post-service in the 
USAR to be compelling. Furthermore, evidence indicated that the applicant’s 
punishment and characterization were too harsh for the circumstances. Therefore, the 
Board found sufficient evidence to upgrade the discharge.





BOARD VOTE:

Mbr 1
Mbr 2
Mbr 3

:x
:x
:x
GRANT FULL RELIEF




:
:

:

:
:

:

:
GRANT PARTIAL RELIEF 
GRANT FORMAL HEARING
DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

In addition to the administrative notes annotated by the Analyst of Record (below the 
signature), the Board determined the evidence presented is sufficient to warrant a 
recommendation for relief. As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 for the period ending “30 Aug 63” showing his characterization of service 
as Honorable.




X  





 

CHAIRPERSON
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):

A review of the applicant’s record shows his DD Form 214 (Armed Forces of the United 
States Report of Transfer or Discharge), for period ending 30 August 1963, is missing 
important entries that affect his eligibility for post-service benefits. As a result, amend 
the DD Form 214, item 26 (Decorations, Medals, Badges, Commendations, Citations, 
and Campaign Ribbons Awarded or Authorized) by adding:

*	M-16 Rifle Expert Marksmanship Qualification Badge
*	M-60 Machine Gun Expert Marksmanship Qualification Badge



   *	M-1 Rifle Sharpshooter Marksmanship Qualification Badge 
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 Army Board for Correction of Military Records 
(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 (AR) 635-200 (Personnel Separations – General Provisions for 
Discharge or Release), in effect at the time, set forth the basic authority for the 
separation of enlisted personnel.

   a.	Paragraph 8c, prescribed procedures for separating members who were 
untrainable, or unsuitable for military service. It stated those individuals who were found 
to be so lacking in abilities and aptitudes as to require frequent or continued special 
instruction or supervision, and those individuals whose interest and/or habits frequently 
require corrective or disciplinary action will be identified as soon as possible with the 
view toward disposition in accordance with appropriate regulations. When discharge 
under these procedures is not warranted, the following action will be taken to bar the 
enlistment or reenlistment of individuals with record of habitual minor misconduct whose 
conduct and efficiency ratings warrant a general discharge but do not warrant an 
honorable discharge:

      (1)	In each applicable case, the unit commander of the individual will prepare a 
certificate signed in duplicate summarizing the basis for the actions which ensue.  He 
will refer the certificate to the enlisted man concerned for a statement as required by 
paragraph 7, AR 640-98 (Filing of Adverse Suitability Information in Individual Records). 
The certificate will be indorsed by the regimental or separate battalion commander, and 
approved or disapproved by the commander exercising general court-martial 
jurisdiction.

      (2)	When the certificate is approved, the commander with custody of the 
Soldier's personnel records will place a signed copy in the soldier's Personnel Records 
Jacket (DA-Form 201) where it will remain a permanent part of the file.  He will also 
enter the remark, "Not recommended for further service" in the "Remarks" section of the 
Service Record (DA Form 24).

      (3)	Commanders of transfer activities will examine each service record of 
personnel undergoing transfer processing and when the remark prescribed in (2) above 
appears in the service record and an honorable discharge is not warranted will enter in
      


item 30, DD Form 214, the remark ''Paragraph 9 (or paragraph 10, as applicable). AR 
601-210 applies -- AR-640-98 complied with."

   b.	An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law. The issuance of an honorable discharge is conditioned upon 
proper military behavior and proficient and industrious performance of duty, giving due 
regard to the rank or grade held and the capabilities of the individual concerned.

3.	On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to the applicant.

4.	AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the 
discretion to hold a hearing; applicants do not have a right to appear personally before 
the Board. The Director or the ABCMR may grant formal hearings whenever justice 
requires.

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