IN THE CASE OF:

BOARD DATE:  24 June 2019

DOCKET NUMBER:  AR20190003670


APPLICANT REQUESTS:  The applicant requests an upgrade of his undesirable 
discharge.

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 discharged after he returned from Vietnam.  He had a 
friend’s 32 revolver and while looking at it the gun accidently went off and shot a young 
woman in the head.  It was an accident and he believes the gun was faulty.    

3.  On 19 March 1970, the applicant was inducted in the Army of the United States.   He 
completed training and was awarded the military occupational specialty 11B (Light 
Weapons Infantryman).  He served in the Republic of Vietnam from on or about               
21 October 1970 to 19 July 1971.        

4.  His service record shows he was awarded or authorized the:

*	Army Commendation Medal (second award)
*	National Defense Service Medal
*	Republic of Vietnam Campaign Medal
*	Vietnam Service Medal
*	Parachutist Badge
*	Combat Infantry Badge 
*	Overseas Service Bar 
5.  On 17 July 1971, he received non-judicial punishment for wrongfully violating a 
general regulation, by being in a designated off limits area.

6.  The applicant’s service record also shows he was:

*	absent without leave (AWOL) from 4 to 22 August 1971
*	AWOL from 7 to 26 September 1971
*	in civilian confinement from 27 September to 18 October 1971
*	AWOL from 1 to 21 November 1971
*	apprehended by police in Babin, NC, while in an AWOL status; reason 
unknown
*	apprehended by Albermarle, NC police for murder while in an AWOL status; 
he was tried and convicted of involuntary manslaughter, and sentenced to 10 
years confinement

7.  Reports for Suspension of Favorable Personnel Actions show, the applicant was 
flagged for:

*	being dropped from the Army’s rolls and being placed in civilian confinement
*	pending trial for murder
*	pending discharge; he was tried and found guilty of involuntary manslaughter 
in Stanley County Superior Court in North Carolina and sentenced to 10 years 
in prison

8.  On 15 January 1973, a recommendation for discharge under the provisions of Army 
Regulation (AR) 635-206 (Personnel Separations – Discharge Misconduct (Fraudulent 
Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for the 
applicant was forwarded to the battalion commander for information and action.

9.  On 1 March 1973, the applicant was discharged under the provisions of AR 635-206, 
paragraph 33a and 37a, with an under conditions other than honorable character of 
service.  He completed 1 year, 5 months, and 19 days of net service.  He had 200 days 
of lost time.    

10.  AR 15-185 (Army Board for Correction of Military Records) states that the ABCMR 
begins its consideration of each case with the presumption of administrative regularity.  
The applicant has the burden of proving an error or injustice by a preponderance of the 
evidence.  The ABCMR will decide cases based on the evidence of record.  It is not an 
investigative body.         

11.  AR 635-206 establishes policy and prescribes procedures for the elimination of 
enlisted personnel for misconduct by reason of fraudulent entry into the service, 
conviction by civil court, and absence without leave or desertion.  The regulation 
provides that:

	a.  An individual will be considered for discharge when it is determined he has been 
initially convicted by civil authorities, or action taken against him which is tantamount to 
a finding of guilty, of an offense for which the maximum penalty under the Uniform Code 
of Military Justice is death or confinement in excess of 1 year.

	b.  The convening authority is authorized to order discharge or direct retention in 
military service when disposition of an individual has been made by a domestic court of 
the United States or its territorial possessions. 

12.  In reaching its determination, the Board should consider the applicant's petition, 
service record, and statements in light of the published Department of Defense 
guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence on the records and published DoD guidance for consideration of discharge 
upgrade request.  The Board considered the applicant’s statement, his record of service 
to include service in Vietnam, the frequency and nature of his misconduct, his civil 
conviction, the reason for his separation and whether to apply clemency.  The Board 
found no evidence of in-service mitigating factors for the 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 document, the Board found that 
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 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 15–185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the Army Board for Correction of Military Records (ABCMR).  
Paragraph 2-9 states that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  The ABCMR will decide cases 
based on the evidence of record.  It is not an investigative body.  

3.  Army Regulation 635-206 (Personnel Separations – Discharge Misconduct 
(Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) 
establishes policy and prescribes procedures for the elimination of enlisted personnel 
for misconduct by reason of fraudulent entry into the service, conviction by civil court, 
and absence without leave or desertion.  The regulation provides that:

	a.  An individual will be considered for discharge when it is determined he has been 
initially convicted by civil authorities, or action taken against him which is tantamount to 
a finding of guilty, of an offense for which the maximum penalty under the Uniform Code 
of Military Justice is death or confinement in excess of 1 year.

	b.  The convening authority is authorized to order discharge or direct retention in 
military service when disposition of an individual has been made by a domestic court of 
the United States or its territorial possessions.

4.  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 (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  Clemency generally refers to relief specifically granted from a criminal 
sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.
  
     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, BCM/NRs 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)	 AR20190003670


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190003670
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ABCMR Record of Proceedings (cont)	AR20190003670


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