ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  5 September 2019

	DOCKET NUMBER:  AR20190008512


APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) 
discharge be upgraded to an under honorable conditions (general) discharge.

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)

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 at the time of his discharge, he was young and committed a 
stupid act.  Now 45 years later, he has not been in any trouble since his discharge, he 
has earned three degrees, and he is close to completing his doctorate degree.

3.  The applicant enlisted in the Army National Guard 30 April 1974 and entered active 
duty for training on 26 June 1974.

4.  During his period of advanced individual training, on 14 October 1974, he shot a 
fellow Soldier.

5.  A general court-martial found the applicant guilty of attempted murder and sentenced 
him to 5 years confinement and a bad conduct discharge (BCD).  The sentence was 
approved and the record of trial was forwarded to the U.S. Army Court of Military 
Review for appellate review.  The applicant was transferred from Fort Polk, Louisiana to 
Fort Leavenworth, Kansas on 21 January 1975, to commence his period of 
confinement. 

6.  The U.S. Army Court of Military Review, on 22 June 1976, did NOT affirm the 
findings and sentence, set aside the findings and the sentence, and advised that a new 
hearing be held.

7.  The applicant was returned to Fort Polk, Louisiana on 8 July 1976, to stand trial.  

8.  Court-martial charges were again preferred against the applicant, on 16 July 1976, 
for attempted murder.

9.  The applicant consulted with legal counsel on 16 July 1976.

	a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the Uniform Code of Military Justice 
(UCMJ), the possible effects of a discharge under other than honorable conditions, and 
the procedures and rights that were available to him.  

	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-
martial.  In his request for discharge, he acknowledged his understanding that by 
requesting discharge, he was admitting guilt to the charge against him, or of a lesser 
included offense that also authorized the imposition of a bad conduct or dishonorable 
discharge.  He further acknowledged he understood that if his discharge request was 
approved he could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.  

	c.  The applicant provided a statement indicating he had previously had been court-
martialed on the same charges but a rehearing had been ordered by the Court of 
Military Review.  He stated he felt it was in the best interest of his family and the Army if 
he was discharged. 

10.  The appropriate authority approved the applicant's request for discharge on 19 July 
1976, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by 
court-martial, and directed that the applicant be reduced to the lowest enlisted grade 
and discharged UOTHC.

11.  The applicant was discharged on 23 July 1976, under the provisions of Army 
Regulation 635-200, Chapter 10, for the good of the service, and his service 
characterization was UOTHC.  His DD Form 214 shows he was discharged in the 
rank/grade of private/E-1.

12.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

13.  The Army Discharge Review Board denied the applicant's request for an upgrade 
on 28 January 1978 and again on 29 October 1980.

14.  In reaching its determination, the Board should consider the applicant's petition, his 
service record, and his statements in light of the published Department of Defense 
guidance on equity, injustice, and 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 serious nature of his misconduct, the reason for his separation and whether 
to apply clemency.  The Board found no in-service mitigation for his misconduct; the 
applicant provided a brief statement regarding post-service achievements, but did not 
submit supporting documents or letters of reference in support of a clemency 
determination.  Based on a preponderance of evidence, the Board determined that 
clemency was not justified and 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 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.  It provides:

   a.  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.  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.  

   c.  Chapter 10 provides that a member who has committed an offense or offenses 
for which the authorized punishment includes a punitive discharge may, submit a 
request for discharge for the good of the service in lieu of trial by court-martial.  The 
request may be submitted at any time after charges have been preferred and must 
include the individual's admission of guilt.  Although an honorable or general discharge 
is authorized, a discharge under other than honorable conditions is normally considered 
appropriate.  At the time of the applicant's discharge an Undesirable Discharge 
Certificate was issued.

4.  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)	 AR20190008512
	
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