IN THE CASE OF: BOARD DATE: 14 May 2021 DOCKET NUMBER: AR20210007678 APPLICANT REQUESTS: * an upgrade of his dishonorable discharge to a general under honorable conditions discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement 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: a. At the time of his infraction at 0700 hours, 15 January 1976, in the chow hall, just before he was to go to "NorPac" and Finance to clear, on or about 0100 hours that morning, he was assaulted by another Soldier, Private (PVT) W_. His reflexes saved his life. Out of anger and insult he retaliated to PVT W_'s demise. He was branded, forfeited all pay and allowances, reduced to the lowest pay grade, dishonorably discharged, and received nine years of hard labor at the U.S. Disciplinary Barracks, Fort Leavenworth, KS. Because he was brainwashed and trained to respond on instinct after being attacked, he retaliated. b. His term of service was finished. He was to get his airline ticket the morning of the incident as it was his expiration term of service (ETS). Notwithstanding the fact that he was coerced out of fear of facing natural life for premeditated murder as a young man with his whole life ahead of him, he was coerced into taking a pretrial agreement for involuntary manslaughter. He did not know that a guilty plea was the strongest plea until much later. He did not even plan to see PVT W_, let alone getting into a dispute with him. c. 35 years later, he is a husband, father, grandfather, and a very distinguished gentleman. He would appreciate it if the Board would upgrade his dishonorable discharge to a general discharge. He completed his term of service. If F_ could be pardoned after pleading guilty and charges dropped completely, he pleads for an equal chance for an upgrade to a general discharge. After all he served time for something he was not guilty of out of fear and coercion. 3. On 31 January 1974, the applicant enlisted in the Regular Army for a term of 2 years, at the age of 18 years. 4. After completing initial entry training, on 8 July 1974, the applicant was assigned overseas in Germany in the military occupational specialty 11D (Armor Reconnaissance Specialist). 5. The applicant accepted nonjudicial punishment (NJP) on: a. 1 November 1974, for willfully disobeying a lawful order from Sergeant (SGT) P_, his superior noncommissioned officer (NCO) to go to the motor pool to tarp off the tracks and lower the gun tubes. He was disrespectful in language toward SGT P_, by saying to him, "F_ you, I ain't going to the motor pool" and "Kiss my A_." His punishment consisted of forfeiture of $99.00 (suspended for 60 days), 14 days' extra duty, and 7 days' restriction. b. 6 May 1975, for being absent without authority (AWOL) from 0700 hours, 25 April 1975, remaining absent until 0915 hours, 25 April 1975. His punishment consisted of reduction to Private E-2, forfeiture of $50.00 for two months, and 20 days' extra duty. The applicant appealed the punishment and the appellate authority suspended his reduction to E-2 for 90 days. On 30 May 1975, the imposing authority vacated the suspension of reduction to Private E-2. 6. On 25 November 1975, the immediate commander initiated a bar to reenlistment against the applicant for accepting two NJPs and having unsatisfactory conduct and efficiency. The commander stated his duty performance was rotten. He received Article 15, Uniform Code of Military Justice (UCMJ), punishment for insubordinate conduct and being AWOL. He was counseled both formally and informally (record is void of counselling statements) about his appearance, his habit of rough housing in the dining facility, and having been caught in the Arms Room. The applicant indicated he had been counselled and advised of the basis of this action and he did not desire to submit a statement on his own behalf. The applicant refused to sign the DA Form 4126-R (Bar to Reenlistment Certificate). On 2 December 1975, the bar to reenlistment was approved. 7. On 19 December 1975, the applicant was tried by summary court-martial. a. He was convicted of one specification each in violation of: * Article 92, UCMJ, for being derelict in the performance of his duties by failing to take charge of his post and all government property within his area of responsibility * Article 134, UCMJ, for wrongfully appearing at the Ammunition Storage Area, Schwabach, Germany, without his web gear b. His punishment consisted of forfeiture of $150.00 pay and 30 days' restriction. On 29 December 1975, the punishment was approved. 8. On 15 January 1976, the applicant's immediate commander requested that the applicant be involuntarily extended due to pending general court-martial for a charge of Article 118, UCMJ, for premeditated murder. On 19 January 1976, the Staff Judge Advocate (delegated representative) approved his retention beyond his ETS. 9. On 5 April 1976, the applicant was tried by general court-martial, he was convicted, pursuant to his plea, of violating Article 119, UCMJ, by, on 15 January 1975, willfully and unlawfully killing Private First Class W_ by stabbing him in the chest with a knife. He was sentenced to confinement at hard labor for 9 years; forfeiture of all pay and allowances; reduction to E-1; and to be separated from the service with a dishonorable discharge. On 27 April 1976, the sentence was approved. a. On 16 August 1976, the U.S. Army Court of Military Review found the findings of guilty and sentence as approved by the proper authority and correct in law; the findings of guilty and the sentence were affirmed. b. The applicant petitioned the U.S Court of Military Appeals for a grant of review. On 15 November 1976, his petition was denied. c. On 19 November 1976, after finally being affirmed, the sentence was ordered executed. 10. On 19 January 1977, the applicant was discharged under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1. His service was characterized as dishonorable. He completed 1 year 11 months, and 8 days of his 2-year contractual obligation. His DD form 214 shows he had 16 days lost time; 355 days lost subsequent to his normal ETS (confinement). 11. In 1980, the applicant petitioned the ABCMR for an upgrade of his dishonorable discharge. The ABCMR did not take action due to failure to exhaust and forwarded his case to the Army Clemency Board for consideration (final action unknown). In his statement, at the time, he explained: * The harassment he faced by the company commander and other supervisors while assigned in Germany * He unjustly received Article 15s, a summary court-martial, and a general court- martial, which prejudice his defense of self-defense by showing he was a troublemaker * The circumstances surrounding his NJPs and how one of the incidents caused him to suffer from frostbite * How he requested a transfer to the location his father was stationed in Germany but his request was denied by the company commander * The circumstances surrounding his summary court-martial and why certain offenses were dismissed * The assault that took place by PVT W_ on the day he was killed was in self- defense and it was not his intent to stab him * His life in confinement after he was sentenced 12. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 13. Army Regulation 635-200, paragraph 11-1 stated an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court- martial, after completion of appellate review and after such affirmed sentence has been ordered executed. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 15. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors and the applicant provided no evidence of claimed post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined 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 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge is a separation with honor. The honorable characterization is conditioned upon proper military behavior and proficient performance of duty during the Soldier’s current enlistment or current period of service with due consideration for the Soldier’s age length of service, grade, and general aptitude. 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. c. Paragraph 11-1 stated an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered executed. 4. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007678 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007678 7 ABCMR Record of Proceedings (cont) AR20210007678 6