ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 June 2019

	DOCKET NUMBER:  AR20160017348


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions as promulgated on two prior occasions.  Specifically, he requests his bad conduct discharge (BCD) be upgraded to an honorable discharge.

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)
* a copy of his general court-martial and the investigation leading up to it, (148 pages ? previously of record)
* the documentation provided in concert with his request for a Presidential Pardon (66 pages plus a second copy of his GCM transcript ? previously of record) 
* copies of his parole consideration documentation (previously of record)
* copies of his service record prior to the GCM previously of record)

FACTS:

1.  The available records indicate the ABCMR has previously reviewed and denied the applicant's request for an upgrade of the characterization of his service on 29 August 1973 and 31 August 1977 (for which only the cover sheets are included in the available record).  While copies of all of the prior decisional documents [records of proceedings] are not of record, copies of the documents provided with the current application were of record and would have been reviewed at the time of the prior reviews. 

2.  As a new argument, the applicant raises the prospect that his discharge resulted from racial discrimination.  This contention was indirectly raised as early as his general court-martial but not specifically addressed, the evidence provided was available and reviewed in the prior ABCMR decisions.  

3.  The applicant was inducted into the Army of the United States on 25 October 1967.

4.  The applicant served in the Republic of Vietnam.
5.  The applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, on 3 February 1969 while serving in the Republic of Vietnam, for failing to obey a lawful order from his first sergeant.  

6.  Before a general court-martial on or about 2 June 1969, in the Republic of Vietnam, the applicant was convicted of threatening a commissioned officer with a pipe and acting with disrespect toward a commissioned officer (two specifications).  He was sentenced to confinement for five years, forfeiture of all pay and allowances, and separation from service with a dishonorable discharge.  The sentence was approved on 29 September 1969 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review.

7.  The U.S. Army Court of Military Review affirmed the findings and sentence on 19 March 1970, with a modification to his period of confinement.

8.  In an undated message it is noted that, as directed by the Secretary of the Army, the applicant's sentence in excess of four years was remitted and the characterization of his separation be changed from dishonorable to bad conduct.

9.  General Court-Martial Order Number 644, issued by the U.S. Disciplinary Barracks on 7 July 1970, noted that Article 71(c) of the UCMJ had been complied with, the sentence was affirmed, and ordered the BCD duly executed.

10.  The applicant was discharged on 27 July 1970, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b.  The DD Form 214 he was issued shows he was discharged in the rank/paygrade of private 1/E-1, he was discharged due to court-martial convictions, and his service was characterized as under other than honorable conditions (UOTHC). 

11.  The applicant petitioned the Army Discharge Review Board (ADRB) on at least three occasions; he was advised on each occasion that the ADRB did not have the authority to review his case as it was the result of a general court-martial conviction.

12.  The ABCMR denied the applicant's request for an upgrade of the characterization of his service on 29 August 1973 and 31 August 1977.  

13.  The applicant's record contains no documented evidence of racial discrimination in support of the applicant's contention.

14.  The Board may consider the applicant's unsupported allegation of racial discrimination in accordance with the published equity, injustice, or clemency determination guidance.



BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board discussed the applicant’s record and his service in Vietnam, his statement regarding racial discrimination, the severity of his misconduct and whether to apply clemency in his case.  The Board found no mitigating factors in the records and there were no post-service conduct documents provided by the applicant to consider in making a clemency determination.  The Board determined that the character of his service was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board determined that relief was not warranted.

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.



	 
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.

ADMINISTRATIVE NOTE(S):

Not Applicable



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 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides 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 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.

   b.  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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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.  
     
	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, Boards 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.


ABCMR Record of Proceedings (cont)	 AR20160017348
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