SAMR-RB 5 March 2018 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160008396 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 20 February 2018, in which the Board members unanimously recommended relief of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 5 July 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards BOARD DATE: 20 February 2018 DOCKET NUMBER: AR20160008396 BOARD VOTE: _____x____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 February 2018 DOCKET NUMBER: AR20160008396 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 with the characterization of service shown as honorable. ______________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: 20 February 2018 DOCKET NUMBER: AR20160008396 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 reconsideration of his previous request to upgrade his discharge under other than honorable conditions to an honorable discharge. 2. The applicant states his discharge is unjust due to the fact that he was wrongfully accused of stealing another Soldier's wallet in 1979. He was given the opportunity to blame another Soldier; however, he could not accuse a fellow Soldier because he knew nothing of the missing wallet and he lived the Army's code of integrity. 3. The applicant provides 4 letters. CONSIDERATION OF EVIDENCE: 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 Number AR2004104072 on 23 November 2004. 2. The applicant provides a new argument, which warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 10 August 1978. 4. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 25 January 1979, for, on or about 20 January 1979, stealing a Soldier's wallet containing $35.00 * 14 February 1979, for, on or about 12 February 1979, being derelict in the performance of his duties by falling asleep on Fire Guard 5. On 15 March 1979, the applicant pled guilty and he was found guilty at a special court-martial of attempting to steal, by force and violence, the wallet of a fellow Soldier. He was sentenced to forfeit $200.00 per month for 3 months, to be confined at hard labor for 105 days, and to be discharged from service with a bad conduct discharge (BCD). The sentence was adjudged on 23 May 1979. The sentence was approved on 27 July 1979. 6. The record of trial by special court-martial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. On 12 December 1979, the U.S. Army Court of Military Review affirmed the findings of guilty and the adjudged sentence. 7. Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, Special Court-Martial Order Number 107, dated 9 May 1980, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's BCD discharge sentence executed. 8. The applicant was discharged from the Army on 18 June 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 11-2, as a result of court-martial. This document further shows he completed a total of 1 year, 7 months, and 15 days of net active service during this period with lost time for the period 23 May to 16 August 1979. 9. In December 1982, the applicant appeared with counsel before the Army Discharge Review Board (ADRB) travel panel to request an upgrade of his discharge. They claimed his discharge was inequitable because of the applicant's heavy involvement with marijuana and alcohol on the night of the incident. The claim was rejected on the grounds that it was not supported in the record or documentation provided by the applicant or his counsel. On 15 January 1983, they were notified the ADRB denied their request for an upgrade of the characterization of the applicant's discharge. 10. On 2 February 2004, applied to the ABCMR and requested an upgrade of his discharge and reentry code. He provided no additional evidence to support his case, and on 23 November 2004, the ABCMR denied his appeal. 11. The applicant provides: a. An undated letter, presumably from the Soldier the applicant was accused of stealing a wallet from, who states he does not remember the Soldier's name who stole his wallet; however, he and the applicant were friends during basic combat training and advanced individual training. He also states he does not remember if the money was in his wallet or if someone gave him the money back, but he never filed or pressed charges against anyone for the stolen wallet. b. Three character reference letters that request the applicant's discharge be reviewed, one of which contains statements attesting to his positive attitude, honesty and integrity. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 11-2, in effect at that time, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD and after such affirmed sentence had been duly executed. 2. Army Regulation 635-200, 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. 3. Army Regulation 635-200, 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. 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. Army Regulation 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 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. 6. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. Additionally, applicants may be represented by counsel at their own expense. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence of record shows his trial by special court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted. By law, this Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 3. The applicant now contends that he was wrongfully accused; however, this relates to matters which could have been raised at the court-martial or in the court-martial appellate process. The evidence shows he received NJP under the provisions of Article 15 of the UCMJ for stealing a wallet from a fellow Soldier and later for dereliction of duty. The evidence also shows during his special court-martial hearing he pled guilty and he was found guilty of attempting to steal, by force and violence, the wallet of a fellow Soldier. 4. In addition, evidence further shows in December 1982, the applicant appeared with counsel before the ADRB travel panel to request an upgrade of his discharge. On that opportunity, he claimed his discharge was inequitable because of his heavy involvement with marijuana and alcohol on the night of the incident. He did not claim that he was not guilty, only that his discharge was inequitable. The claim was rejected on the grounds that it was not supported by evidence by either the applicant or his counsel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008396 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008396 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2