BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160001117 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 BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160001117 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. BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160001117 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 an upgrade of his under conditions other than honorable discharge to a general, under honorable conditions discharge. 2. The applicant states he was young, afraid, and unaware of what he had to do in order to stay in the U.S. Army when he learned that he was being processed for separation. He requests reconsideration of the characterization of his service for the period of time he served his country. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three letters of support. 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 applicant enlisted in the Regular Army on 18 August 1969 for a period of 3 years. At the time he was 17 years of age. 3. His DA Form 20 (Enlisted Qualification Record), in pertinent part, shows: * he completed the following training – * Uniform Code of Military Justice (UCMJ), 20 August 1969 * Benefits of an Honorable Discharge, 20 August 1969 * Code of Conduct, 24 October 1969 * Basic Combat Training, 24 October 1960 * Unit and Organization Supply Specialist and Armorer, December 1969 * he was awarded military occupational specialty (MOS) 76Y (Unit/Organization Supply Specialist and Armorer) 4. The applicant received nonjudicial punishment (NJP) for violation of the UCMJ on five occasions, as follows: * on 8 September 1969 – for willfully disobeying a lawful order from his superior noncommissioned officer on 6 September 1969 * on 15 September 1969 – for behaving himself with disrespect toward a superior commissioned officer on 15 September 1969 * on 12 November 1969 – for absenting himself from his unit from 10 November until 11 November 1969 * on 12 December 1969 – for absenting himself from his unit from 5 December until 9 December 1969 * on 27 January 1970 – for absenting himself from his unit from 19 December 1969 until 6 January 1970 and from 12 January 1970 until 13 January 1970 5. The applicant was absent without leave (AWOL) from 17 January 1970 until 20 January 1970. 6. Headquarters, U.S. Army Engineer Center, Fort Belvoir, VA, Special Court-Martial (SPCM) Order Number 46, dated 22 May 1970, promulgated the applicant's trial by SPCM. a. He was found guilty of violation of the UCMJ: * Article 86 – Charge I, of being AWOL from 30 January 1970 until 9 February 1970 * Article 90 – Charge II, of behaving himself with disrespect toward his superior commissioned officer on 25 February 1970 * Article 128 – Charge III: * Specification 1, of unlawfully striking a Soldier on the chest with his fist on 23 February 1970 * Specification 2, of unlawfully striking a Soldier on the chest with his fist on 25 February 1970 * Article 134 – Charge IV, Specification 1, of breaking restriction on 30 January 1970 b. On 31 March 1970, he was sentenced to be confined at hard labor for three months, to forfeit $50.00 pay per month for three months, and to be discharged from the service with a bad conduct discharge (BCD). c. On 22 May 1970, the SPCM Convening Authority (SPCMCA) approved the sentence. He ordered the applicant be confined in the Central Confinement Facility, Fort Belvoir, VA, or elsewhere as competent authority may direct. He also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review (CMR). 7. Headquarters, U.S. Army Engineer Center, Fort Belvoir, VA, SPCM Order Number 48, dated 4 June 1970, remitted the unexecuted portion of the sentence to confinement at hard labor for three months. 8. U.S. Army CMR, Decision, dated 22 December 1970, shows the CMR found the approved findings of guilty and the sentence pertaining to the applicant's case correct in law and fact and affirmed the findings of guilty and the sentence. 9. On 22 December 1970, the applicant acknowledged receipt of the decision of the CMR in his case and that he had been advised of his right to petition the Court of Military Appeals (CMA) for a grant of review with respect to any matter of law within 30 days. After having consulted with counsel, the applicant indicated he did not desire to petition for or prosecute an appeal to the CMA and he requested (for his own convenience) that appropriate action be taken to finalize the sentence as affirmed by the CMR. 10. Headquarters, U.S. Army Engineer Center, Fort Belvoir, VA, SPCM Order Number 95, dated 22 December 1970, confirmed the applicant's court-martial sentence was affirmed. The portion of the sentence of confinement at hard labor for three months having been remitted, and the provisions of Article 71(c) having been complied with, the approved sentence which provided for forfeiture of $50.00 pay per month for three months and discharge from the service with a BCD was ordered executed. 11. Headquarters, U.S. Army Engineer Center, Fort Belvoir, VA, Special Orders Number 5, dated 8 January 1971, discharged the applicant under conditions other than honorable effective 13 January 1971. 12. The applicant's DD Form 214 shows he entered active duty this period on 18 August 1969 and he was discharged under conditions other than honorable on 13 January 1971 under the provisions of Army Regulation (AR) 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, Absence Without Leave, Desertion)) with Separation Program Number 292 (court-martial, other than desertion). He had completed 11 months and 26 days of net active service this period and he had a total of 150 days of time lost. 13. In support of his application the applicant provides three character reference letters from Pastor Ralph L. S___, U.S. Marine Corps veteran; John H. M___, U.S. Navy, Retired; and Sergeant First Class Jacob E. P___, U.S. Army, Retired, that were written in December 2015. They show that all three individuals met the applicant subsequent to his service in the U.S. Army and they have known him for many years. They attest to his personal integrity, dependability, and good character. They also recommend upgrade of the characterization of his service. REFERENCES: 1. AR 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ is death or confinement in excess of 1 year. (At the time, the under other than honorable conditions characterization was associated with a sentence to a BCD.) 2. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 3 (Character of Service/Description of Separation), 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. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contends that the characterization of his service should be upgraded because he was young, afraid, and unaware of what he had to do in order to stay in the U.S. Army. 2. The applicant successfully completed training, including the Code of Conduct, Basic Combat Training, and Benefits of an Honorable Discharge, which argues against his contention that he was unaware of what he had to do in order to serve satisfactorily in the U.S. Army. Additionally, he completed advanced individual training and was awarded MOS 76Y, which demonstrates his capacity for honorable service and argues against his contention that he was immature. 3. The evidence of record shows the applicant was tried and convicted at a SPCM. a. The SPCMCA approved the findings and sentence, which included a BCD, and the CMR affirmed the findings of guilty and the sentence. b. The applicant chose not appeal his conviction to the CMA. He requested appropriate action be taken to finalize the sentence as affirmed by the CMR. c. On 13 January 1971, he was discharged with a characterization of service of under conditions other than honorable. 4. The applicant's trial by SPCM was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the appellate review. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 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. 6. The evidence of record shows that prior to the applicant's conviction by SPCM he received NJP on five occasions and he had 150 days of time lost. a. He completed less than 1 year of his 3-year active duty obligation. b. The applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel. c. The character reference letters the applicant provided were considered and his post-service conduct is noted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001117 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001117 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2