ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20190005354


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable conditions (general) discharge or 
an honorable discharge, and correction of his DD Form 214 (Report of Separation from 
Active Duty) to show his birth year as 1954 instead of 1953.

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), dated 11 April 2019
*	DD Form 214, for the period ending 16 September 1975
*	Commonwealth of Virginia Delayed Certificate of Birth, issued on 29 December 
2009

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 he was involved in a fight over how long it took for him and 
another Soldier to return from a beer run.  He and five other Soldiers were fighting but 
only he and two other African-American Soldiers were court-martialed.  He only had to 
serve 4 and 1/4 months of his 5 months of confinement.  He also states the year of his 
birth is incorrect on his DD Form 214.

3.  The applicant enlisted in the Regular Army on 16 November 1973.  His enlistment 
contract shows his birth year as 1953.  

4.  The applicant received nonjudicial punishment, under Article 15 of the Uniform Code 
of Military Justice (UCMJ), on the following dates for the indicated offenses:

*	on 18 March 1974, for being absent without leave (AWOL) from on or about 28 
January through on or about 19 February 1974
*	on or about 4 June 1974, for failure to go to his place of duty on two occasions, 
on or about 1 and 2 June 1974

5.  Before a special court-martial on or about 13 August 1974, the applicant was 
convicted of theft of an unspecified amount of cash, by means of force and violence 
from a fellow Soldier.  His sentence included his forfeiture of $200.00 pay per month for 
five months, reduction to the rank/grade of private/E-1, confinement for four months, 
and separation from service with a bad conduct discharge (BCD).  The sentence was 
approved on 9 October 1974 and the record of trial was forwarded to the U.S. Army 
Court Military Review for appellate review.

6.  The applicant completed his period of confinement on 18 November 1975 and was 
ordered restored to duty, pending final appellant review.

7.  A Federal Bureau of Investigation notification, dated 7 February 1975, indicates the 
applicant was arrested for murder on 24 January 1975.

8. Special Court-Martial Order  issued by Headquarters, Fort George G. 
Meade, Fort George G. Meade, Maryland on , noted that the applicant's 
appellant review had been completed and the findings and sentence were affirmed.  
With the confinement portion of his sentence having been completed, the discharge was 
ordered executed.

9.  A DA Form 4187 (Personnel Action), dated 22 May 1975, shows the applicant's duty 
status was changed from absent without leave (AWOL) to Confined by Civil Authorities, 
effective 25 January 1975.  

10.  The outcome of the applicant's civilian murder charge is not of record.

11.  The applicant was discharged on 16 September 1975.  The DD Form 214 he was 
issued shows he was discharged under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 11, and pursuant to Special 
Court-Martial Order Number 115.  His DD Form 214 shows he was discharged in the 
rank/grade of private/E-1, his service was characterized as UOTHC, and he was issued 
a DD Form 259A (BCD Certificate). 

12.  The applicant's available record does not contain and the applicant has not 
provided any evidence of the alleged fight he contends was the reason for his 
discharge.

13.  The applicant provides a copy of his birth certificate, which shows his birth year as 


14.  The Board may 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 and the delayed 
certificate of birth certificate, his record of service, the frequency and nature of his 
misconduct, the FBI record, the reason for his separation and whether to apply 
clemency.  The Board found that the applicant consistently used  as birth year 
throughout his records, to include enlistment documents bearing his signature.  There is 
no evidence that his DD Form 214 did not accurately reflect the circumstances as they 
existed at the time of his separation.  The Board found insufficient in-service mitigating 
factors to overcome 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 and the birth year reflected in his records 
were not in error or unjust.

2.  The applicant is advised that a copy of this decision will be placed in his records to 
clarify the difference in the year of birth used during his service and the year of birth he 
uses today.  

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 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.

3.  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.

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.  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.


ABCMR Record of Proceedings (cont)	 AR20190005354
	
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