ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

                   BOARD DATE:  18 January 2018

                   DOCKET NUMBER:  AR20160014342


APPLICANT REQUESTS: upgrade of his bad conduct discharge and personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  DD Form 149 (Application for Correction of Military Record).

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, in effect, he does not believe he received a fair trial during his court-martial proceedings.  All the witnesses of his act of self-defense were processed out of the area.

3.  A review of the applicant’s service records show:

	a.  He was inducted into the Army of the United States on 5 September 1968.  He served in Vietnam from 24 March 1969 to 19 March 1970.  He was promoted to specialist four (SP4)/E-4 on 19 November 1969.

	b.  He was honorably discharged for immediate reenlistment on 15 September 1970.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded or authorized: 

* National Defense Service Medal
* 2 overseas service bars 
* Purple Heart
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Army Commendation Medal (1st Oak Leaf Cluster) and V Device 
	c.  He reenlisted on 16 September 1970 at Fort Riley, KS.  He accepted Article 15, UCMJ (Uniform Code of Military Justice) on:

* 1 December 1970 for willfully disobeying a superior commissioned officer 
* 9 December 1970 for failing to obey a lawful order.  

	d.  He again served in Vietnam from 18 April 1971 to on or around 29 October 1971.  

	e.  On 18 September 1971, he was convicted a general court-martial of one specification of assault upon a Soldier by cutting him with a surgical knife and did thereby intentionally afflict grievous bodily harm, to wit:  two deep cuts in the abdomen.  He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, confinement with hard labor for ten months, and reduction to private on (PV1)/E-1).  

	f.  USARV Form 327 (Review of the Staff Judge Advocate) provided:

* applicant’s personal data, including military service information
* maximum punishment based on the findings
* gist of the charges
* summary of the evidence for the prosecution
* summary of the evidence for the defense, which states "the defense presented no evidence on the merits"
* summary of the court-martial proceedings
* Staff Judge Advocate’s opinion
* clemency:  evidence in extenuation and mitigation
* convening authorities responsibility
* rebuttal matters, if any were attached to the review (If so, not available for review)
* Staff Judge Advocate’s recommendation

	g.  The sentence was approved on 23 November 1971.

	h.  General Court-Martial Order Number 1185, shows that the sentence was affirmed. 

	i.  On 20 October 1972, he was discharged with an under other than honorable conditions characterization of service and issued a Bad Conduct Discharge Certificate.  

	j.  His DD Form 214 ending 20 October 1972, shows he completed 1 year, 6 months, and 25 days during this period and he had 191 days of lost time.  He was awarded or authorized: National Defense Service Medal, Expert Marksmanship Qualification Badges with Rifle Bar (M-14), and Expert Marksmanship Qualification Badge with Submachine Gun Bar.
4.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this 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.

5.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  The Board considered the applicant’s request, evidence in the service record, applicable regulations, policy, and guidance.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  After a thorough review, the Board found no error or injustice.  Therefore the Board denies the applicant’s request to upgrade the character of his discharge.

2. The Board further considered the request for a personal appearance and found the evidence of record sufficient to render a fair and equitable decision at this time.


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:

1.  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.

2.  The evidence of record and independent evidence provided by the applicant are sufficient to render a decision without a personal appearance hearing.   


												 ___________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, 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) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  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.  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.  A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

3.  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.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 or equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.

5.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	c.  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.


ABCMR Record of Proceedings (cont)	 AR20160014342


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