ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20190004839


APPLICANT REQUESTS:  In effect, that his under other than honorable conditions 
(UOTHC) discharge be upgraded and a personal appearance before the Board.

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)
*	14 pages of medical and dental health records, dated between 22 November 
1972 and 18 March 1974
*	DD Form 214 (Report of Separation from Active Duty), for the period ending  
16 July 1975
*	National Personnel Records Center letter, dated 31 March 2018
*	Request Pertaining to Military Records, undated

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 his discharge was an injustice caused by a fight he had with 
another Soldier in his unit.  The Soldier said he saw the applicant do certain things, 
which was not true.

3.  The applicant enlisted in the Regular Army on 22 November 1972.

4.  The applicant accepted non-judicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated 
offenses:

*	on 13 April 1973, for being absent without leave (AWOL) from on or about 3 April 
through on or about 4 April 1973
*	on 31 May 1973, for being AWOL from on or about 27 April through on or about 
23 May 1973
*	on 14 June 1973, for willfully disobeying a lawful order on or about 13 June 1973

5.  Before a general court-martial on or about 1 March 1974, at Fort Hood, Texas, the 
applicant was found guilty of three specifications of committing assault on two 
occasions, communicating a threat, and carrying a concealed weapon, on or about 
9 January 1974.  The court sentenced him to confinement at hard labor for one year, 
forfeiture of all pay and allowances for a year, reduction to the rank/grade of private/E-1, 
and separation from service with a bad conduct discharge (BCD).

6.  The sentence was approved on 14 June 1974 and the record of trial was forwarded 
to the U.S. Army Court of Military Review for appellate review.  The applicant was 
restored to duty pending completion of appellate review on 4 November 1974.

7.  The U.S. Army Court of Military Review affirmed the sentence on or about 16 May 
1975.

8.  General Court-Martial Order Number 647, issued by Headquarters, U.S. Disciplinary 
Barracks, Fort Leavenworth, Kansas on 24 June 1975, noted that the applicant's 
sentence had been affirmed and ordered the BCD duly executed.

9.  The applicant was discharged on 16 July 1975.  His DD Form 214 shows he was 
discharged under the provisions of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 11, as a result of court-martial.  He received a BCD and 
his service was characterized as UOTHC.

10.  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 service record, 
the frequency and nature of his misconduct, the reason for his separation and whether 
to apply clemency.  The Boar found insufficient evidence of in-service mitigating factors 
for his 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 at separation was not in error or unjust. 

2.   The applicant's request for a personal appearance hearing was carefully 
considered.  In this case, the evidence of record was sufficient to render a fair and 
equitable decision. As a result, a personal appearance hearing is not necessary to 
serve the interest of equity and justice in this case.
3.  After reviewing the application and all supporting documents, 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 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 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR may, in its discretion, hold a hearing or request additional evidence or 
opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to 
a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

3.  Army Regulation 635-200, in effect at the time, set 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.

	c.  Chapter 11 provided that an enlisted person would be given a BCD pursuant only 
to an approved sentence of a general or special court-martial, after completion of 
appellate review, and after such affirmed sentence has been ordered duly executed.  
The service of Soldiers sentenced to a BCD was to be characterized as under 
conditions other than honorable.

4.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority 
under which this Board acts, the ABCMR is not empowered to set aside a conviction.  
Rather, it is only empowered to change the severity of the sentence imposed in the 
court-martial process and then only if clemency is determined to be appropriate.  
Clemency is an act of mercy or instance of leniency to moderate the severity of the 
punishment imposed.

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.

	a.  Clemency generally refers to relief specifically granted from a criminal sentence.  
BCM/NRs 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.  

	b.  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.  

	c.  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)	 AR20190004839

6

1