ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20160017545 APPLICANT REQUESTS: an upgrade to the FSM’s under other than honorable discharge conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certificate of Death * Letter from National Personnel Records Center * Certificate of Military Service 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. In effect, the FSM spouse request an upgrade to his under other than honorable conditions discharge. She states “Because my husband deserves to have his records corrected, so that proper benefits can be given. His last duty station was at Herbert Field in Fort Walton Beach, FL in Aug of 96, where he was the commander of the 101st Airborne training there I do believe there are several mistakes that need to be corrected because how is it that the current one shows 70-72 when he trained men on Herbert during the gulf war. My husband has been trying to get this corrected, but he has also been very sick, until he finally succumb to his illness ranging from cancer due to Agent Orange”. 3. A review of the FSM’s service record shows: a. He was inducted into the Army of the United States on 6 August 1970. b. On 29 September 1971, his immediate commander submitted a transmittal of court-martial charges against the applicant for elimination from service by general court-martial. c. On 30 September 1971, his senior commander recommended trial by special court-martial with a bad conduct discharge. d. On 15 October 1971, the applicant was informed by the military judge detailed to the court-martial to which the charges and specification pending against him have been referred for trial. After consulting with his defense counsel, he requested that the court be composed of the military judge alone. He acknowledged: * his right to be tried by a court-martial composed of commissioned and enlisted personnel * he was fully advised of foregoing a trial composed of commissioned and at least one-third enlisted members not part of his unit upon request * approval of the foregoing request for trial before the judge alone e. On 15 October 1971, the applicant was convicted by a special court-martial of four specifications of being Absent Without Leave (AWOL) between 23 November 1970 and 15 July 1971 for a total of approximately 191 days. His sentence consisted of a bad conduct discharge, confinement at hard labor 4 months, and a forfeiture pay of $20.00 a month for 4 months. f. On 1 December 1971, non-judicial punishment was imposed against the applicant for going AWOL. His punishment was forfeiture of 7 days of pay $60.00 and 14 days of restriction. g. On 25 January 1971, The States Army Court of Military Review approved only so much of the sentence as provided for a BCD, confinement at hard labor for 2 months, and a forfeiture of pay of $20.00 a month for 2 months. h. On 19 July 1972, the applicant was discharged. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in the rank of E-1 under the provisions of paragraph 11-2 of Army Regulation 635-200 (Personnel Separation Enlisted Personnel), as a result of special court-martial with a bad conduct discharge. He served 9 months and 22 days of active service with 319 days of lost time due to AWOL and confinement. He was awarded or authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge Rifle. 4. By regulation, an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 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: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service prior to lengthy periods of AWOL, the Board concluded that the FSM’s characterization of service received at the time of discharge was appropriate. 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. 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 635-200 (Personnel Separations Enlisted Separations), in effect at time, provides for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice. It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 11-2 (Bad Conduct Discharge) states an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 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. 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 based on 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) AR20160017545 3 1