ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160016045 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge under other than honorable conditions be upgraded to under honorable conditions (general). 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 he was wrong for what he did and did it for stupid reasons. He says he shouldn’t have done it and apologizes for his actions. Ever since his discharge he’s been involved heavily in his church for almost 40 years and hasn’t been in trouble. He also states, “Please allow me the honor of having my benefits, I’ve never been in any problem the US Army any other time but a sharp Soldier.” 3. On 6 December 1971, the applicant enlisted in the Regular Army. 4. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following occasions: * 11 April 1972, wrongfully urinate out of window * 12 April 1972, absent without leave (AWOL) from on or about 3 April 1972 to on or about 10 April 1972 * 2 May 1972 and 15 May 1972, failure to be at appointed place of duty 5. A record of court-martial conviction provides he was arraigned and tried at a special court-martial on three occasions: a. Special Court-Martial Order (SPCMO) Number 15, shows the applicant plead guilty and was found guilty of stealing the property of X____ X____ and falsely writing several checks totaling $300 and wrongfully communicating a threat to kill Specialist Four X____ X____. He was confined at hard labor for four months, reduced to the grade of Private E-1, to forfeit $100.00 per month for four months. The sentence was adjudged on 14 August 1973. b. SPCMO Number 4 shows the applicant was found guilty of falsely writing a check on two occasions, falsely make a certain check and stealing the property of X____ X. X____. c. SPCMO Number 71 the applicant pled guilty and was found guilty of stealing a ten speed bicycle, of a value about $115 and wrongfully have in his possession two ounces, more or less of marijuana. He was additionally charged with stealing a radio, of a value of about $115.00; he was found and pled guilty. He was to be discharged from the service with a bad conduct discharge, to be confined at hard labor four month; and to forfeit $200.00 per month for four months, and be reduced to Private/E-1. The sentence was adjudged on 19 July 1974. (1) SPCMO Number 562 shows the applicant was restored to duty pending completion of appellate review and the portion of the sentence adjudging partial forfeitures shall not apply to pay becoming due him during the period commencing on the date of this order, and terminating on the date of the order directing execution of the sentence. (2) SPCMO Number 699, issued by Headquarters, U.S. Army Disciplinary Barracks, 13 November 1974, shows the applicant is presently a member of the Correctional Holding Detachment, United States Disciplinary Barracks, on excess leave without pay. 6. On 6 December 1974, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 5 months, and 13 days of net active service. 7. Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The Board has 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.   9. The applicant states he was wrong and apologizes for his actions during that time. Since then he’s been heavily involved with his church for almost 40 years and hasn’t been in trouble since and would like his benefits.   10. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the passage of time and under new clemency guidance, the Board determined that upgrading the applicant’s discharge to general under honorable conditions was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 a DD Form 214 showing his characterization of service as general, under honorable conditions. 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 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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that 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. 3. Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.   a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. b. Chapter 11 established policy and procedures for separating members was with a dishonorable or bad conduct discharge. Chapter 11 stated a Soldier was given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and the appellate review must have been completed and the affirmed sentence ordered duly executed. c. 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. d. 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. e. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. f. 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. 4. 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. 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