IN THE CASE OF:  

BOARD DATE:  19 September 2019

DOCKET NUMBER:  AR20190008298


APPLICANT REQUESTS:  The applicant requests an upgrade of his bad conduct 
discharge that was previously upgraded based on clemency.     

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge)

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 is asking for a character of discharge upgrade if possible.  
He was drafted at a very young age of 19 and completed training without incident.  Due 
to his young age, inability to handle stress, and lack of respect for authority he obviously 
made some very poor choices.  He is different person now.  If he could, he would have 
acted differently in all of these situations.  His service was short, however, that should 
not be an indicator of his love for his country.  The last 50 years have been good for 
him, but the bad conduct discharge is his only regret.  He is asking for a discharge 
upgrade for the first time and has exceeded the 15 year deadline.

3.  On 19 May 1966, the applicant was inducted in the Army of the United States.      

4.  On 30 August 1966, he received non-judicial punishment under the provisions of 
Article 15 of the Uniformed Code of Military Justice for willfully disobeying a lawful order 
from a superior noncommissioned officer.  

5.  On 5 April 1967, the applicant was tried and convicted by a special court-martial.  He 
pleaded guilty and was found guilty of being absent without leave (AWOL) from on or 
about 31 August to 19 October 1966 and 28 November 1966 to 4 March 1967.  

6.  On 27 July 1967, he was tried and convicted again by a special court-martial.  The 
applicant was found guilty of being AWOL from on or about 14 April to 28 June 1967.  
His was sentenced to six months confinement at hard labor and forfeiture of $60.00 per 
month for six months.  

7.  On 14 August 1967, a Certificate of Psychiatric Evaluation shows, in pertinent part: 

*	the applicant stated he wanted to be a civilian again soon and would go 
AWOL again if returned to duty
*	he was diagnosed with “immature personality, chronic, moderate, manifested 
by impulsive behavior, poor judgment, and resentment of authority”; not in the 
line of duty and it existed prior to service
*	the psychiatrist found that the applicant’s longstanding character and 
behavior disorder described would tend to exist permanently; and the 
applicant could not be rehabilitated to the extent that he could be an effective 
Soldier and was a candidate for administrative separation  

8.  On 7 September 1967, a Certificate of Psychiatric Evaluation cleared the applicant 
for separation processing and boards deemed necessary by his chain of command.  He 
was found psychiatrically competent in all areas and he had no medical illness. 

9.  On 10 October 1967, the applicant was tried and convicted by a general court-
martial.  He was found guilty of stealing two cars and forgery on five (5) separate 
occasions.  

10.  On 6 December 1967, only so much of the findings of guilty of stealing an 
automobile valued at $800.00 dollars and the sentence that provided for a dishonorable 
discharge, forfeiture of all pay and allowances, and confinement at hard labor for four 
years and six months was approved.  The record of trial was forwarded to The Judge 
Advocate General of the Army for review by a board of review.  Pending completion of 
appellate review the applicant was confined in the United States Disciplinary Barracks, 
Fort Leavenworth, Kansas.  

11.  On 15 November 1968, after completion of appellate review, the sentence to a 
dishonorable discharge, forfeiture of pay, and confinement at hard labor for four years 
and six months was affirmed, and ordered duly executed.  

12.  On 16 December 1968, the applicant was dishonorably discharged by court-martial.  
He was a trainee and did not complete training requirements.  He completed 3 months 
and 15 days of net active service and had 836 days of lost time.

13.  In May 1969, the applicant was granted clemency and furnished a bad conduct 
discharge.

14.  The applicant's contention that he was young and immature is out weighted by the 
fact that Soldiers of the same age have completed training requirements and honorably 
served their military terms of service.     

15.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  In accordance with Title 10, United States 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.

16.  In reaching its determination, the Board should consider the applicant's petition, 
service record, and statements in light of the published Department of Defense 
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, court-martial proceedings and the 
reason for his separation.  The Board found insufficient evidence of in-service mitigation 
for the applicant’s repeated misconduct and he 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 upon 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

:XXX	:XXX	:XXX	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.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  In accordance with Title 10, United States 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.

3.  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 on the basis of 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.
ABCMR Record of Proceedings (cont)	 AR20190008298


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190008298
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ABCMR Record of Proceedings (cont)	AR20190008298


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