ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS

IN THE CASE OF: 
BOARD DATE:	22 August 2019 
DOCKET NUMBER: AR20190005898

APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 
(Armed Forces of the United States Report of Transfer or Discharge) to show his 
service is characterized as honorable, or general, under honorable and an opportunity 
to personally appear before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   *	DD Form 149 (Application for Correction of Military Record)
   *	DD Form 214 
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 (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 at age 18, he was assigned to Germany and he got into trouble 
by hanging out with the older guys smoking hashish and marijuana. There was no drug 
treatment available for him and when he got into trouble he was called into the office 
and was told let’s have a chat.  He was offered a discharge for the good of the service 
or told he would be put in [prison] at Fort Leavenworth, KS.  Additionally, he states:

   a.	At that time there was a big dispute between black and white Soldiers in 
Kirchgoens Germany. There was a riot and shortly thereafter he was told to take the 
deal. Everyone else involved got to stay in the service and he got discharged under 
other than honorable conditions. He completed 18 months of service without any 
problems. He has been a very good citizen and hired service members. He pleads for 
help getting his discharge upgraded.

   b.	He owned a business for over thirty years, he was a graduate of the, “SBA 8a 
program” and was a mentor for small businesses. He has been married for over 30 
years with grandchildren and would like to get his discharge upgraded so that he can 
benefit from his good service. He is a certified asbestos contractor, general contractor,
   


and project manager. He has built parks for the city of , been a special witness for the 
environmental council in , and built an outpatient clinic in .

3.	On 28 April 1969, at the age 18, the applicant enlisted in the Regular Army for a 
period of 3 years. His record shows his race as "B" [black], he successfully completed 
training and was awarded military occupational specialty (MOS) 11B (Light Weapons 
Infantryman). On 16 October 1969, he was assigned to Company A, 2/36th Infantry, 
Germany with duties in his MOS. He received excellent conduct and efficiency ratings 
of excellence through training and the first 21 days of assignment.

4.	On 20 January 1970, he accepted nonjudicial punishment (NJP) under Article 15, 
Uniform Code of Military Justice for disobeying a lawful order and for being disrespectful 
in language toward a noncommissioned officer by saying "You prejudice " or words to 
that effect on 19 January 1970. His punishment consisted of reduction to paygrade E-2, 
a forfeiture of pay, and extra duty.

5.	Court-martial charges were preferred against the applicant for the following offenses 
on 11 June 1970:

*	unlawfully entering a German business with the intent to steal a portable 
television set
*	stealing a portable television set of a value of $497, the property of a German 
business
*	willfully and wrongfully damaging property of a value of 900 Deutsche Marks 
(DM), the property of a German business
*	willfully and wrongfully damaging by breaking the pane of a show window of a 
value of about 4,000 DM’s (between10-11 June 1970)

4.	On 22 July 1970, the applicant voluntarily requested discharge for the good of the 
service in lieu of trial by court-martial under the provisions of chapter 10, Army 
Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel). He 
acknowledged he had been afforded the opportunity to speak with counsel prior to 
making his request and elected not to submit a statement(s) on his own behalf. The 
applicant's immediate and intermediate commanders recommended the applicant's 
request for discharge be approved and that he be issued an Undesirable Discharge 
Certificate.

5.	On 17 August 1970, the court-martial approval authority approved the applicant's 
voluntary request for discharge, directed that he be reduced to pay grade of E-1, and 
that he be issued an Undesirable Discharge Certificate.

6.	On 27 August 1970, the applicant was discharged accordingly. He was reduced to 
pay grade E-1 with an under other than honorable conditions characterization of 
service.  He completed 1 year and 4 months of net active service.



7.	His record is void of evidence that shows a riot, disposition of civil charges by the 
German business, or that he was using drugs/sought drug treatment.

8.	On 19 July 1978, the Army Discharge Review Board (ADRB) reviewed his discharge 
and found it proper and equitable. The ADRB unanimously voted to deny him a change 
in the character of service and the reason for discharge.

9.	Chapter 10, AR 635-200, in effect at the time, stated a member who committed an 
offense or offenses for which the authorized punishment included a punitive discharge 
may, at any time after the charges have been preferred, submit a request for discharge 
for the good of the service in lieu of trial by court-martial.

10.	The applicant contends at the time he got into trouble he was assigned to 
Germany, hanging out with the older guys and started smoking hashish and marijuana. 
There was no drug treatment available for him. At that time there was a big dispute 
between black and white Soldiers.  He got into trouble and he was offered a discharge 
for the good of the service or be put in prison at Fort Leavenworth. There was a riot and 
shortly thereafter he was told to take the deal. Everyone else who were involved got to 
stay in the service and he got a discharged under other than honorable conditions. He 
completed 18 months of service without any problems. He is a certified asbestos 
contractor, general contractor and project manager who has built parks for the city of 
Atlanta, been special witness for the Environmental Council and built the patient clinic 
for the Cincinnati Veterans Administration.  Since being discharged, he has been a 
good citizen and business man completing numerous projects around the United States 
and has hired plenty of service men. He has been married for over 30 years with 
grandchildren.

   a.	The available evidences shows he completed 1 year and 4 months of his 3 year 
enlistment obligation. He received excellent conduct and efficiency ratings; however, 
within approximately 8 months of being assigned to Germany he received NJP for 
verbally telling his leader he was prejudice and four months later was charged for four 
offenses against a German business. The applicant contends the civil charges were 
dropped; however, neither the applicant nor the available records provides evidence 
reflecting the final disposition of the civil charges.

   b.	The available evidence contains no information about a dispute among Soldiers 
or an occurrence of a riot, issues of drug usage or that he sought/required drug 
rehabilitation. He voluntarily requested discharge for the good of the service in lieu of 
trial by court-martial.

11.	In regards to the applicant's request for a personal appearance, Army Regulation 
15-185, states an applicant is not entitled to a hearing before the Board; however, the 
request for a hearing may be authorized by a panel of the Board or by the Director of 
ABCMR. In this case, the evidence of record was sufficient to render a fair and 
equitable decision.




12.	In reaching its determination, the Board can consider the applicant’s petition and 
his service/post service record in accordance with the published equity, injustice, or 
clemency 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 
records, the frequency and nature of his misconduct, the reason for his separation 
and whether clemency should be applied. The Board found insufficient evidence in 
in-service mitigating factors for the misconduct.  The Board considered the 
applicant’s statement regarding post-service achievements but found it unsupported 
by additional evidence or letters of reference.  The Board found the evidence 
provided by the applicant insufficient to support 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.	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



X	X	X


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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.








 

CHAIRPERSON
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 will decide cases on the evidence of record. It is not an investigative body. 
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.	AR 635-200, then in effect, set forth the basic authority for the administrative 
separation of enlisted personnel.

   a.	Chapter 10 stated a member who committed an offense or offenses for which the 
authorized punishment included a punitive discharge may, at any time after the charges 
have been preferred, submit a request for discharge for the good of the service in lieu of 
trial by court-martial. Although an honorable or general discharge was authorized, a 
discharge under other than honorable conditions was normally considered appropriate. 
At the time of the applicant's separation the regulation provided for the issuance of an 
Undesirable Discharge Certificate.

   b.	An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law. The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel, or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.

   c.	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.	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 based on 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.

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