IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150009659 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150009659 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. ____________X_____________ 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. IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150009659 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of the reason and authority for the deceased former service member’s (FSM) under conditions other than honorable discharge and removal of lost time from his DA Form 20 (Enlisted Qualification Record) and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 2. The applicant states, in effect: a. The FSM’s bad conduct discharge (BCD) was not substantiated by the U.S. Army Court of Military Review. This demonstrated an unauthorized separation and his rights and privileges should be restored. The FSM’s DA Form 20 shows he spent time in correctional custody. According to Army Regulation 27-10 (Military Justice) time spent in correctional custody does not count as lost time. b. The U.S. Army Court of Review found it necessary to set aside the finding of guilty. Title 10, U.S.Code, Section 851 (Article 51, Voting and rulings) states that doubt must be resolved in the favor of the accused and he must be acquitted. 3. The applicant provides: * Special Court-Martial Order Number 26, dated 31 May 1971 * Special Court-Martial Order 7775, dated 18 October 1972 * DA Form 20 (Enlisted Qualification Record) * DD Form 214 * FSM’s Death Certificate * State of Maryland Letter of Administration of a Small Estate * excerpt of Title 10, U.S. Code, Section 851 * excerpt of Title 10, U.S. Code, Section 858 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM enlisted in the Regular Army on 24 October 1966. 3. His DA Form 20 shows in item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration of Term of Service): * 25 June 1970 to 19 August 1970, absent without leave (AWOL) * 5 March 1971 to 18 March 1971, AWOL * 24 November 1971 to 1 January 1972, confinement 4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating various articles of the UCMJ by committing the following offenses: * being AWOL from 4 December 1966 to 5 December 1966 * being absent from his appointed place of duty on or about 19 January 1967 * being AWOL from 25 March 1967 to 27 March 1967 * being absent from his place of duty from 19 April 1968 to 20 April 1968 * being AWOL from on or about 11 May 1969 to on or about 16 May 1969 * failing to obey a lawful order on 4 June 1969 * failing to obey a lawful order on 30 June 1969 and during the period 1 July 1969 to 4 July 1969 * failing to obey a lawful order on 20 July 1969 * violating a general regulation and making false statements on 2 May 1969 and 4 May 1969 * wrongfully transporting an unauthorized person in a government vehicle on 3 April 1971 5. Special Court-Martial Order Number 33, issued by Headquarters, 4th Training Brigade, Fort Jackson, SC, dated 16 February 1967, shows he pled guilty and was found guilty of failing to obey a lawful order. 6. Special Court-Martial Order Number 1260, issued by Headquarters, Special Processing Battalion, Fort George G. Meade, MD, dated 7 October 1970, shows he pled not guilty and was found guilty of being AWOL from on or about 25 June 1970 to 20 August 1970. 7. Special Court-Martial Order Number 26, issued by Headquarters, 16th Aviation Group (Combat), Republic of Vietnam (RVN), dated 31 May 1971, shows he pled guilty and was found guilty of being AWOL from on or about 5 March 1971 to on or about 19 March 1971, falsifying a document, and carrying a concealed weapon. 8. Special Court-Martial Order Number 71, issued by Headquarters, 23rd Infantry Division (Americal), RVN, dated 25 November 1971, shows he was found guilty of: a. Specification 2 of Charge I for being AWOL from on or about 3 July 1971 to on or about 7 July 1971; b. Specification 1 of Charge II for violating a lawful order on or about 25 June 1971; c. Specification 2 of Charge II for violating a general regulation on or about 25 June 1971; and d. Specification 1 of Charge III for using a document with an intent to deceive. 9. On 3 September 1971, the court sentenced him to confinement at hard labor for 5 months, forfeiture of $127.00 pay per month for 6 months, reduction to the rank/grade of private/E-1, and a bad conduct discharge. 10. On 16 October 1972, the U.S. Court of Military Review set aside and dismissed the finding of guilty of Charge III, Specification 1, in reference to Special Court-Martial Order 71, adjudged on 3 September 1971. However, the remaining findings of guilty and the sentence were affirmed. 11. On 26 January 1973, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), with a separation program number (SPN) code of 292. Army Regulation 635-5-1 (Separation Documents), in effect at the time, showed that SPN code 292 indicated separation of enlisted personnel by reason of "other than desertion (courts-martial)." His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he received an under conditions other than honorable characterization of service. He completed a total of 5 years, 11 months, and 11 days of creditable service with 113 days of lost time. 12. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 2-3a, in effect at the time, states that lost time refers to periods of more than 1 day when a Soldier on AD cannot perform duty because of: * desertion * absence without proper authority * confinement under sentence * confinement while awaiting trial or disposition of Soldier's case, if trial results in conviction * intemperate use of drugs or alcohol * disease or injury, the result of Soldier's misconduct b. Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or BCD. Paragraph 11-2 provided that a BCD would be given pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed. c. Paragraph 1-9d provides that 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. d. 1-9e provides that 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. 2. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service. The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214: a. Item 26a of the version in effect at the time shows time lost under Title 10, U.S. Code, section 972. b. For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered. Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran’s benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service. 3. 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. DISCUSSION: 1. The applicant argues that the FSM’s BCD was not substantiated by the U.S. Army Court of Military Review; however, it appears the applicant mistakenly applied the decision of the U.S. Army Court of Military Review to the wrong court-martial conviction. 2. The applicant provides a copy of Special Court-Martial Order Number 26, dated 31 May 1971, adjudged on 27 April 1971 as evidence; however, the decision of the U.S. Army Court of Military Review referred to Special Court-Martial Order 71, dated 25 November 1971, adjudged on 3 September 1971. 3. The U.S. Court of Military Review set aside and dismissed the finding of guilty of Charge III, Specification 1, in reference to Special Court-Martial Order 71, adjudged on 3 September 1971. However, the remaining findings of guilty and the sentence were affirmed. 4. The FSM’s sentence consisted of confinement at hard labor for 5 months, forfeiture of $127.00 pay per month for 6 months, reduction to the rank/grade of private/E-1, and a BCD. 5. The applicant also states that the lost time recorded on the FSM’s DA Form 20 is inaccurate because it shows he spent time in correctional custody; however, his DA Form 20 documents his lost time pertaining to him being AWOL and his confinement due to his court-martial conviction. 6. The governing regulation states that lost time refers to periods of more than 1 day when a Soldier cannot perform duty because of, in pertinent part, confinement under sentence or awaiting trial. Therefore, his confinement is considered lost time and is properly recorded on his DA Form 20 and his DD Form 214. 7. The FSM was given a BCD pursuant to an approved sentence of a special court-martial. The appellate review was completed and sentence affirmed. All requirements of law and regulation were met and his rights were fully protected. 8. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009659 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009659 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2