ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 November 2020 DOCKET NUMBER: AR20200000064 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his bad conduct discharge. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. 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) in Docket Numbers: * AR2015000 on 8 October * AR2016000 on 12 June. 2. The applicant states, in effect, he wants his discharge upgraded. 3. 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. However, the information contained in the two Records of Proceedings (ROP) can provide the Board the information needed to conduct a fair and impartial review of this case. The applicant provides (in previous ROPs) * Certificate of Training, dated 8 February 1955 * The Airborne School Certificate, dated 19 March 1955 * Headquarters, Fort Monroe, Special Orders, dated 15 January show he was separated with a bad conduct discharge on 21 January 1957 under the provisions of Army Regulation 635-204 (Personnel Separations- Dishonorable and Bad Conduct Discharge) and assigned separation program number (SPN) 292 (Other Than Desertion (Court-Martial)) 4. A Certification of Military Service Certificates issued on 5 April 2000 and 22 September 2014 show his service dates as 20 September 1957 to 21 January 1957. His service was terminated by a bad conduct discharge. 5. On 8 October 2015, the Board considered his application for an upgrade of his discharge. He stated: a. He enlisted in the Army in 1954 when he was 18 years old. He completed basic training at Fort Knox, KY; advanced individual training at Fort Jackson, SC; and airborne training at Fort Campbell, KY. b. In 1955, he witnessed a sergeant assault a private in the barracks. The private asked him to testify for him. When the sergeant found out he was going to testify, it made the sergeant mad and he made it rough on the applicant with extra details and threats. He was afraid for his safety and he decided to be absent without leave (AWOL). A few weeks later he was arrested and sent back to his unit. He was court- martialed and sentenced to 6 months of confinement. c. Upon his release from confinement, he was sent to Fort Monroe, VA, and then to Fort Eustis, VA. He wanted to get back into an airborne unit. He was told he was an Army misfit. He decided to be AWOL again. He was arrested and returned to his unit. He was told if he didn't take a bad conduct discharge he would spend a lot of time in jail. He agreed and was sentenced to 6 months in jail. d. He got out of the Army in 1957. He knew he had to turn his life around. He got a job, got married, and had a son. He coached his son's little league baseball team. He enjoys hunting, fishing, and he is an active member in his church. He has always felt bad about his bad conduct discharge and tried many times to see if he could do something about it. e. The Board denied his request for an upgrade. 6. On 12 June 2018, the Board reconsidered his application for an upgrade of his discharge. He had stated: a. All his records were lost in the 1973 fire and he does not have anything to show the Board what he did before his bad conduct discharge. He completed basic combat and advanced individual training and he also completed airborne training. He tried to go overseas but there were no airborne units in Korea at the time and peace talks were still going on. He tried to go to Ranger school but he got in trouble with the sergeant, which changed everything. b. For many years after his discharge, he felt very ashamed but was always proud of our country. After his discharge, he worked in various jobs, met his wife, and they had a son, and although they lived in a bad area, he worked hard. He got involved in baseball and coached his son's team and built a house in a wooded area where he remains today. His son ultimately joined the Air Force, his sister served in the Army and even married a Soldier, and his brother served in the Air Force; his brother also participated in D-Day and received a Purple Heart. c. In the late 1970s, he began going to church with his son, and this experience changed his life; he became the head usher and is responsible for the cash. He also received a letter from the American Legion approving him to become a member • if he had known about the Board he would have submitted an application to upgrade his discharge a long time ago. d. The Board denied his request for an upgrade of his discharge. 6. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief and amend the prior ABCMR decisions set forth in Docket Numbers AR2015000, on 8 October, and AR2016000, on 12 June. 2. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The Board carefully considered the applicant’s assertion that he went AWOL due to issues with a Sergeant and being called an Army “misfit”. SO Number 10, dated 15 January, shows the applicant was court-martialed and given a Bad Conduct Discharge for going AWOL, which is a punitive offense. The available record is void of and the applicant did not provide a separation packet, which may have provided additional facts in this case. The record is void of and the applicant did not provide independent corroboration of any administrative irregularity in the applicant’s separation. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate. 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. 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. REFERENCES: 1. Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge), in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1 b stated an enlisted person would be separated with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 2. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel. a. Paragraph 3-7a 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. b. Paragraph 3-7b 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. 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. 4. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. 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 based on 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. 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//