ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20190005398


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions (UOTHC) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  DD 
Form 149 (Application for Correction of Military Record).

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 would like to receive a discharge for his good time, he still 
proclaims innocence, and he would like to receive medical assistance from the 
Department of Veterans Affairs (VA).  

3.  On 30 September 1958, at the age of 18 years old and an 8th grade education, the 
applicant enlisted in the Regular Army for a term of 3 years.  After completing initial 
entry training, he was assigned to an overseas assignment in Germany.

4.  On 11 March 1960, the immediate commander notified the applicant by 
memorandum of his intent to impose punishment against the applicant under Article 15, 
Uniform Code of Military Justice (UCMJ), nonjudicial punishment (NJP), for being 
AWOL from on or about 0600 hours, 11 March 1960 and remained absent until on or 
about 0900 hours, 11 March 1960.  The applicant acknowledged notification and 
accepted punishment under Article 15, UCMJ. 

5.  On 27 August 1960, he was convicted by summary court-martial for one specification 
of being absent without leave (AWOL) from on or about 1400 hours, 7 August 1960 and 
remained absent until on or about 2145 hours, 7 August 1960.  He was sentenced to 
reduction to private two (PV2)/E-2 and forfeiture of pay.  On 29 August 1960, the 
convening authority approved the findings and the sentence and ordered the sentence 
executed.
6.  On 10 November 1960, he and another Soldier, acting jointly, were convicted by 
general court-martial of one specification of committing an indecent assault upon a 
German National female by pulling her from her bicycle, pushing her to the ground, and 
while one of them held his hand over her mouth, the other tore open her coat and 
inserted his finger into her vagina with intent to gratify their sexual desires.  He was 
sentenced to be dishonorably discharged from the service, forfeiture of all pay and 
allowances, confinement at hard labor for one year, and reduction to private one 
(PV1)/E-1.  On 20 January 1961, the Staff Judge Advocate completed a legal review of 
the case.  On 21 January 1961, the convening authority approved the sentence.  On 
7 March 1961, the Board of Review affirmed the findings and the sentence.  The 
applicant petitioned the U.S. Court of Military Appeals (USCMA) to grant a review of his 
case.  On 15 June 1961, the USCMA denied his petition to grant a review.

7.  On 11 May 1961, the Department of the Army Provost Marshal General, by order of 
the Secretary of the Army, upgraded the applicant’s discharge from a dishonorable 
discharge to an undesirable discharge.

8.  On 19 July 1961, he was discharged accordingly.  He was issued an Undesirable 
Discharge Certificate and his service was characterized as UOTHC.  He completed 
2 years and 7 days of total active service.  His DD Form 214 shows:

*	He was discharged under reason and authority General Court-Martial Order 
(GCMO) Number 5, dated 21 January 1961 and GCMO Number 449, dated 
21 June 1961, Separation Program Number (SPN) 292
*	He had 286 days lost under Title 10 U.S Code 972 from 7 October 1960 – 
19 July 1961 (confinement)

9.  The applicant states he would like to receive a discharge for his good time, he still 
proclaims innocence, and he would like to receive medical assistance from the VA.  His 
record shows he enlisted at the age of 18 years old, he accepted one NJP, he was 
convicted by a summary court-martial of being AWOL and a general court-martial for 
indecent assault, and he had 286 days lost due to confinement.  He served 24 months 
of his 36 months contractual obligation.

10.  AR 635-5 (Personnel Separations – Administrative Separation Procedures and 
Forms) stated SPN 292 is assigned under the authority of AR 635-204 and the reason 
of "other than desertion (courts-martial)."  

11.  Army Regulation (AR) 635-204 (Personnel Separations - Dishonorable and Bad 
Conduct Discharges), provided for separation of enlisted personnel with dishonorable 
and bad conduct discharges.  This regulation stated that an enlisted person would be 
discharged with a dishonorable discharge pursuant only to an approved sentence of 
general court-martial and a bad conduct discharge based on an approved sentence of a 
general court-martial or a special court-martial imposing a bad conduct discharge.

12.  AR 635-200 (Personnel Separations – General Provisions for Discharge and 
Release), provided a member may be awarded an honorable or general discharge, if 
during the current enlistment period of obligated service he has been awarded a 
personal decoration or if warranted by the particular circumstances of a specific case.

13.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  The Board is not empowered to set aside a conviction but is 
empowered to change the severity of the sentence imposed in the court-martial process 
and then only if clemency is determined to be appropriate.  

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

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 record of 
service, the frequency and nature of his misconduct, multiple courts-martial, the reason 
for his separation and whether to apply clemency.  The Board found no 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.  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 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) 635-204 (Personnel Separations - Dishonorable and Bad 
Conduct Discharges), in effect at the time, provided for separation of enlisted personnel 
with dishonorable and bad conduct discharges.  This regulation stated that an enlisted 
person would be discharged with a dishonorable discharge pursuant only to an 
approved sentence of general court-martial and a bad conduct discharge based on an 
approved sentence of a general court-martial or a special court-martial imposing a bad 
conduct discharge.

3.  AR 635-200 (Personnel Separations – General Provisions for Discharge and 
Release), in effect at the time, provided the basic authority for separation of enlisted 
Soldiers.  It stated a member may be awarded an honorable or general discharge, if 
during the current enlistment period of obligated service he has been awarded a 
personal decoration or if warranted by the particular circumstances of a specific case:

      a.  An honorable discharge was a separation with honor and entitled the recipient 
to benefits provided by law.  The honorable characterization was 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.
      
      b.  A general discharge was a separation from the Army under honorable 
conditions. When authorized, it was issued to a Soldier whose military record was 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

4.  AR 635-5 (Personnel Separations – Administrative Separation Procedures and 
Forms), in effect at the time, established uniform administrative procedures and 
separation forms to be used in connection with the relief from active duty or complete 
separation from the military service of commissioned officers, warrant officers, and 
enlisted personnel.  It stated SPN 292 is used under the authority of AR 635-204 and 
reason of other than desertion (courts-martial).

5.  Title 10, section 1552 provides 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 Army Board for 
Correction of Military Records 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.

6.  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

ABCMR Record of Proceedings (cont)	 AR20190005398

3

1