IN THE CASE OF:  

BOARD DATE:  24 September 2019

DOCKET NUMBER:  AR20190010492


APPLICANT REQUESTS:  The applicant states in effect he requests his dishonorable 
discharge be upgraded to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Certificate of Military Service

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.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) 8 June 1978.

3.  The applicant states in effect he would like his dishonorable discharge upgraded to 
an honorable discharge.  

4.  The applicant’s complete military records are not available to the Board for review.  A 
fire destroyed approximately 18 million service members’ records at the National 
Personnel Records Center in 1973.  It is believed that much of the applicant’s records 
were lost or destroyed in that fire.  However, there were sufficient documents remaining 
in a reconstructed record for the Board to conduct a fair and impartial review of this 
case. 

5.  A review of the available documents show the applicant re-enlisted on 31 August 
1951 for 6 years at the age of 24.  

6.   On 9 September 1952, charges were referred to the Judge Advocates Office for 
consideration on the applicant.  He was charged with stealing an automobile in the 
value excess of $50 and resisting apprehension.    

7.  On 3 September 1952, the applicant underwent a general courts-martial (GCMO) 
and was found guilty for:  

*	Stealing a 1948 Black Ford Sedan of a value of $1000 from another Soldier
*	Resisting being lawfully apprehended by an armed force policeman

8.  On 19 September 1952, the sentence was adjudged and the applicant was 
sentenced to be confined at hard labor for four years, forfeiture of all pay, and 
dishonorably discharged.  GCMO No. 235, shows the applicant appealed his sentence 
to the U.S. Court of Criminal Appeals and on 4 October 1952; the sentence was 
affirmed and the confinement was executed.  

9.  His available records show he was discharged accordingly on 23 March 1953.  His 
records are void of a DD Form 214.  

10.  The applicant provides a copy of a United States of America Certification of Military 
Service which shows he was dishonorably discharged on 23 March 1953.  
11.  The applicant applied and was denied by the ABCMR on 8 June 19781
12.  Army Regulation 635-200 (Personnel Separations) provides a Soldier would be 
given a bad conduct discharge pursuant only to an approved sentence of a general or 
special court-martial and that the appellate review must be completed and the affirmed 
sentence ordered duly executed.
13.  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 ABCMR 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. 
  
14.  The board stated there was insufficient evidence to indicate probable material error 
or injustice.  In the absence of evidence to the contrary, it is presumed that the 
applicant's processing for discharge separation was administratively correct.
 



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 belief that his record were lost or burned in the fire at the National 
Personnel Records Center, the frequency and nature of his misconduct and the reason 
for his separation.  The Board found insufficient evidence of in-service mitigation to 
overcome the 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 upon separation was not in error or unjust.   

2.  After carefully 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.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the Army Board for Correction of Military Records 
(ABCMR).  Paragraph 2-9 states 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 (Personnel Separations), then in effect, set forth the basic 
authority for the separation of enlisted personnel.
 
     a.  Chapter 3, section IV, established policy and procedures for separating members 
with a dishonorable or bad conduct discharge and provided that a Soldier would be 
given a bad conduct discharge pursuant only to an approved sentence of a general or 
special court-martial and that the appellate review must be completed and the affirmed 
sentence ordered duly executed.
 
     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.  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 ABCMR 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.
 
5.  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)	 AR20190010492


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190010492
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ABCMR Record of Proceedings (cont)	AR20190010492


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