ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20190003803


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction 
of Military Records (ABCMR) decision promulgated in Docket Number AR1999025466 
on 2 February 2000.  Specifically, he requests his under other than honorable 
conditions (UOTHC) discharge be upgraded to an honorable discharge.

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.  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 
AR1999025466 on 2 February 2000.

2.  The applicant states he served his obligated period of service and beyond that.

3.  The applicant enlisted in the Regular Army on 8 January 1974.

4.  The applicant's record shows the highest permanent rank/grade he held on active 
duty was private/E-2 and his record contains no documented acts of valor, 
achievement, or service warranting special recognition.

5.  The applicant accepted nonjudicial punishment (NJP), under Article 15 of the 
Uniform Code of Military Justice (UCMJ), on the following dates:

*	on 16 September 1974, for sleeping on his post (guard duty), on or about  
12 September 1974
*	on 21 November 1974, for violating a lawful general regulation by possessing 
marijuana, on or about 11 November 1974
*	on 5 March 1975, for assaulting another Soldier, on or about 25 February 1975 
*	on 13 January 1976, for assaulting two fellow Soldiers (one a commissioned 
officer), on or about 30 December 1975 
*	on 5 November 1976, for using disrespectful language towards a 
noncommissioned officer (NCO), on or about 3 November 1976
*	on 29 December 1976, for being absent without leave (AWOL) from on or about 
23 December through on or about 28 December 1976 
*	on 20 January 1977, for using disrespectful language towards a commissioned 
officer and for assaulting an NCO, on or about 15 January 1977, and for 
assaulting a fellow Soldier, on or about 25 February 1975

6.  Before a special court-martial on or about 25 July 1975, at Fort Hood, Texas, the 
applicant was found guilty of stealing a wallet containing $50.00 cash, the property of 
another Soldier. 

7.  The applicant's commander notified the applicant on 17 November 1976 of his intent 
to initiate actions to separate the applicant from service under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a, by 
reason of misconduct

8.  The applicant was afforded a mental status evaluation on 22 November 1976. The 
examiner indicated that the applicant was mildly despondent but cleared him for any 
administrative action deemed necessary. 

9.  A board of officers convened on 27 January 1977 to consider the applicant's fitness 
for continued service.  The board found the applicant was not fit for continued active 
duty and recommended he be discharged UOTHC. 

10.  The separation authority approved the applicant's request for discharge under the 
provisions of Army Regulation 635-200, Chapter 13, by reason of misconduct.  

11.  The applicant was discharged on 25 February 1977.  The DD Form 214 he was 
issued does not cite a regulatory authority for his discharge but shows:

*	he was discharged in the rank/grade of private/E-1
*	he was credited with 2 years, 10 months, and 18 days of active service
*	his service characterization was UOTHC 
*	he was discharged by reason of "Unsuitability, Apathy, Defective Attitude, or 
Inability to Expend Effort Constructively"

12.  The applicant petitioned the ABCMR for a discharge upgrade; however, the 
ABCMR denied the applicant's request on 2 February 2000.

13.  The Board should consider the applicant's overall record and 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 found insufficient evidence of error, 
injustice, or inequity; the applicant had no wartime service and insufficient evidence of 
mitigating circumstances for the serious and numerous instances of misconduct.  
Neither did the Board find sufficient evidence of post-service honorable conduct that 
might have mitigated the discharge characterization.  The Board agreed that the 
applicant’s discharge characterization is appropriate.


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.  Title 10, USC, Section 972 requires a Soldier to make up lost time due to being 
AWOL, in confinement, and so forth, prior to separation.

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The regulation provides 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.

4.  Army Regulation 635-200 sets forth the basic authority for the 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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 13-5a(1) and (4) of the regulation provided, in pertinent part, for the 
separation of enlisted personnel for unfitness. At the time of the applicant's service 
individuals separated by reason of unfitness were normally furnished with an 
Undesirable Discharge Certificate.

5.  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)	 AR20190003803
	
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