ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160014131 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-authored statement, dated 7 July 2016 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, 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: * his service characterization stems from a felony civilian conviction he attributes to his less than honorable treatment at the hands of an overzealous Army officer with an agenda in particular and the callous indifference of the Army * he was assigned to a training company at the Fort Belvoir Engineer School in 1972 * he was falsely accused for being a dope pusher at the instigation of a white racist officer * he was confronted by armed Military Police and Criminal Investigation Division (CID) agents, strip searched, and shackled front of the barracks and placed in the stockade * he was confined for nearly a month * a pharmacology report revealed the purported narcotics he was charged with possessing were an off-the-shelf stimulant known as NoDoz sold in the post exchange * his Judge Advocate General counsel advised him to file a racial discrimination complaint against his commanding officer * after he informed his first sergeant of his intentions, he was transferred to Fort Dix, NJ for training as a cook in clear violation of his contractual agreement to train as a mobile power specialist in military occupational specialty (MOS) 52B (Power Generation Equipment Repairer) in exchange for 3 years of service * the experience of being falsely accused, having weapons pointed at him, and being publicly humiliated at the behest of a racist officer was not conducive to motivating him to be a good Soldier * the incident triggered a downward spiral of depression and destructive behavior as he could find no one to listen to him * while assigned to the 2d Transportation Group in Pusan, Korea, in 1973, he sought mental health treatment for suicidal thoughts, but was made to feel he was a malingerer * while assigned to an infantry unit along the Korea demilitarized zone border, a white company clerk stole a tax refund check from him * a CID investigator accused him of stealing his own check * this incident pushed him over the edge * he regrets having to serve with the malevolent elements who used their positions of authority to promote their own prejudices * he is sorry he let their actions corrupt him 3. The applicant enlisted in the Regular Army on 18 August 1972 for a 3-year obligation. His DA Form 3286-44-R (Statements for Enlistment – Part VI – U.S. Army Training and Travel Enlistment Option) shows he was assured U.S. Army Career Group (ACGP) training for Mobile Electric Power Generation with assignment to Eighth U.S. Army, Korea, provided he met required prerequisites. He acknowledged: a. Should he be relieved from the school or ACGP training for academic deficiency, disciplinary reasons, or failure to receive a required security clearance, he would be reassigned in accordance with the needs of the Army and be required to complete the period of service for which he enlisted. b. Upon his successful completion of the school or ACGP training he would be assigned in accordance with his choice, but no promise had been made to him concerning the specific job or station to which he would be assigned within the selected command. c. Should he fail to meet any of the prerequisites for this option after enlistment, he understood he would be trained in an MOS based on the needs of the Army and assigned in accordance with the needs of the Army. 4. Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record – Part II) he was absent without leave for 3 days from 5 November 1973 through 7 November 1973. 5. Nonjudicial punishment was imposed against him for an unknown offense on 13 November 1973. His punishment included reduction to private/E-1, restriction for 30 days, and extra duty for 14 days. Suspension of his nonjudicial punishment was vacated the same date. The original nonjudicial record of proceedings is not contained in the military records. 6. Unit Orders Number 63, Headquarters and Headquarters Company, 2d Transportation Group, Pusan, Korea, dated 26 November 1973, reduced him in rank/grade to private/E-1 for misconduct under the provisions of Article 15 of the Uniform Code of Military Justice effective 13 November 1973. His MOS is shown as 94B (Cook) in the standard name line. 7. Special Orders Number 111, Headquarters, 2d Infantry Division, Korea, dated 7 June 1974, awarded him secondary MOS 11C (Indirect Fire Crewman) effective 6 June 1974. His MOS is shown as 94B in the standard name line. 8. He accepted nonjudicial punishment on 12 July 1974 for: * possession of one rolled cigarette containing marijuana at Guard Post Collier on or about 19 June 1974 * being absent without proper authority from his unit from on or about 8 July 1974 until on or about 10 July 1974 9. A Department of Justice Federal Bureau of Investigation record, dated 24 February 1975, shows he was charged with capital murder of a peace officer during a bank robbery in San Antonio, TX, on 14 September 1975. 10. The judgement of the 27th District Court of Bell County, Texas, dated 5 March 1975, shows he was indicted for the offense of capital murder, a capital felony, occurring on 14 September 1974. On 20 January 1975, he was convicted of the offense of capital murder. The court adjudged the applicant guilty of the offense of capital murder as found by the jury and sentenced him to death as determined by the jury and in accordance with the Penal Code of the State of Texas. 11. The Commander, Battery A, U.S. Army Field Artillery Center, Fort Sill, OK, notified the applicant in writing by certified mail of his intent to separate him from service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for conviction by civil court. He was notified he had the right to present his case before a board of officers, submit statements in his own behalf, and to be represented by counsel. 12. On 14 March 1975, the applicant responded in writing and requested consideration of his case by a board of officers, a personal appearance before a board of officers, and representation by military counsel. He did not submit statements in his own behalf. He acknowledged he understood that he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life as a result of issuance of a discharge under conditions other than honorable. 13. On 5 May 1975, the Bureau of Texas Department of Corrections confirmed he had been confined since 6 March 1975. 14. On 6 May 1975, the U.S. Army Enlisted Records Center, Fort Benjamin Harrison, IN, notified the Commander, U.S. Army Training Doctrine Command, Fort Monroe, VA, the applicant was confined by the Sheriff's Office, Belton, TX, and sentenced to death for murder of a peace officer. The operations officer recommended his separation under the provisions of Army Regulation 635-206, section VI. 15. On 7 May 1975, the Commander, Battery A, U.S. Army Field Artillery Center, Fort Sill, OK, recommended the applicant's appearance before a board of officers under the provisions of Army Regulation 635-206 to determine whether he should be discharged before the expiration of his term of service. 16. On 9 May 1975, the Commander, Headquarters and Headquarters Battery, 214th Field Artillery Group, Fort Sill, OK, notified him a board of officers would meet on 26 May 1975 to consider his separation for civil court conviction under the provisions of Army Regulation 635-206. 17. On 27 May 1975, a board of officers met and determined his immediate separation was warranted under the provisions of Army Regulation 635-206, section VI, for the offense of conviction by civil court and recommended issuance of an Undesirable Discharge Certificate. 18. His intermediate commanders recommended approval of his separation under the provisions of Army Regulation 635-206 for conviction by civil court, and issuance of an Undesirable Discharge Certificate. 19. On 12 August 1975, the approval authority directed his discharge under the provisions of Army Regulation 635-206, section VI, and issuance of an Undesirable Discharge Certificate. 20. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 26 August 1974 in the rank/grade of private/E-1 under the provisions of Army Regulation 635-200 (should read Army Regulation 635-206) and assigned separation program designator (SPD) code JKB. He completed 2 years and 14 days of creditable active service during this period and accrued 350 days of lost time. His service was characterized as under other than honorable conditions. BOARD DISCUSSION: After reviewing the application and all supporting evidence, to include the applicant’s statement, the Board determined that the severity of the misconduct by the applicant warranted the discharge characterization given and that no injustice or clemency was warranted in the case. 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. Title 10, U.S. Code, 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), in effect at the time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). Section VI prescribed procedures for processing cases of individuals who, during their current term of active military service, have been initially convicted or adjudged juvenile offenders. a. Paragraph 33 provided that an individual would be considered for discharge when it was determined that he had been initially convicted by civil authorities or action taken against him which was tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year. b. Paragraph 36 provided that an individual discharged for conviction by civil court normally would be furnished an Undesirable Discharge Certificate. 3. Army Regulation 635-5-1 (Separation Program Designators), in effect at the time, listed the specific authorities, statutory, or other directives and reasons for separation from active duty, active duty for training, or full-time training duty. The SPD code JKB corresponded to misconduct, conviction by civil court or adjudged a juvenile offender. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 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. ABCMR Record of Proceedings (cont) AR20160014131 6 1