IN THE CASE OF:  

BOARD DATE:  28 October 2019

DOCKET NUMBER:  AR20190009889


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an honorable 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), dated 16 June 2019

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:

	a.  Prior to his expiration of term of service (ETS) date, he spent three straight days 
on "Ready Alert" on post, near a runway.  When his unit came under the "Ready Alert," 
he told his unit First Sergeant (1SG) that he was supposed to be getting ready to clear 
post.  The 1SG replied that "Ready Alert" meant everyone.  

	b.  The 1SG was with them the entire time on "Ready Alert'' and was aware of his 
requirements to clear post.  He knew that it took a while to collect all the paperwork he 
would need but he still went to the staging area as ordered by the 1SG.

	c.  On the third day, the 1SG asked him why he was not clearing post.  He was told 
he should have been clearing post by the 1SG, who then told him "to get my ass" to 
finding all the paperwork he needed from the list he had.

	d.  During the conversation, prior to his leaving the "Ready Alert" area, the 1SG 
shoved him with both arms.  He was standing at attention and was not expecting the 
forceful shove backwards while he yelled "to get my ass" to finding all the paperwork.  
He nearly fell over backwards.  As he was falling, he defended himself slightly and 
weakly by pushing the 1SG with one of his arms.  The only part of the entire discussion 
witnessed by anyone was the part where he pushed the 1SG weakly with one arm.  At 
no time did he initiate contact, raise his voice, or raise his arms or hands in an offensive 
or confrontational manner. 

	e.  The 1SG initiated forceful contact with him, baited him into defending himself, 
and failed to describe the incident completely/correctly to the military police (MP) 
officers.  The MPs did take statements from the witnesses, but again, they only saw the 
last few seconds of the incident.

	f.  Please note, the racial tension was extremely high in this unit at the time.  The 
1SG knew that and played on it.  He was one of only eight Caucasians out of the entire 
310 personnel.  Looking back, he realizes that the 1SG tried to race-bait them as 
motivation.  He was trained to respect all; race did not matter to him.  Unfortunately for 
him, not falling into the race trap meant the 1SG focused an extremely large amount of 
his attention on him.

	g.  The Base Commander, a two-star general, reviewed the statements a couple of 
days later.  He decided, based on his military record of several letters of 
accommodation and a "Good Conduct Award," that he should not go to jail as the 
incident was not severe enough to warrant jail time.  He did, however, change his 
discharge.

	h.  In view of the extenuating issues of three days of "Ready Alert'' with no sleep, 
extremely high tension from both the possibilities of shipping out for war and the racial 
tensions, the pressures to clear post in hours verses days, and his military record prior 
to the incident, he is requesting a change to his discharge status.  He believes his 
service record prior to the incident warrants an honorable discharge.  Eight seconds of 
self-defense indiscretion cost him entire military career.

3.  The applicant enlisted in the Regular Army on 31 January 1978.

4.  Court-martial charges were preferred against the applicant for violations of the 
Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge 
Sheet) is not available for review in this case.

5.  The available record does not contain any documentation related to the applicant's 
discharge processing.

6.  The applicant was discharged on 25 February 1981.  The DD Form 214 he was 
issued shows he was discharged under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in 
lieu of trial by court-martial, and his service was characterized as UOTHC.  His  
DD Form 214 further shows:
*	he was discharged in the rank/grade of private/E-1
*	he was credited with 3 years and 25 days of net active service
*	no award of any personal decorations for valor or merit (including the Army Good 
Conduct Medal)

7.  The issuance of a discharge under the provisions of Army Regulation 635-200, 
Chapter 10, required the applicant to have requested from the Army – voluntarily, 
willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all 
requirements of law and regulation were met and the rights of the applicant were fully 
protected throughout the separation process.  The applicant has provided no 
information that would indicate the contrary.  Further, it is presumed that the applicant’s 
discharge accurately reflects his overall record of service.  

8.  The Board may consider the applicant's petition, his service record, and his 
statements in light of the published guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

The Board carefully considered the applicant's request, 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 reason for his 
separation, and whether to apply clemency.  The Board found insufficient evidence of 
in-service mitigating factors or evidence corroborating the applicant's account of the 
events that led to his discharge.  The Board noted 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 upon separation was not in error or unjust.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XX	:XX	:XX	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.


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 UOTHC is normally considered appropriate.

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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190009889

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190009889

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ABCMR Record of Proceedings (cont)	AR20190009889


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