ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20160017895 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge and his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he completed the Jungle School, Arctic School, Desert School, Armory School, Recondo School, and Sanitation School. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 12 October 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. His discharge should be upgraded based on the awards he received and his military education. b. Item 14 (Military Education) of his DD Form 214 should show he completed Jungle School, Arctic School, Desert School, Armory School, Recondo School, and Sanitation School. 3. The applicant enlisted in the Regular Army on 4 February 1975. He completed training as a light weapons infantryman. 4. Multiple DA Forms 2627 (Records of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) show the applicant accepted nonjudicial punishment (NJP) on five separate occasions between 16 January 1976 and 2 February 1978, for the following acts of misconduct, including but not limited to: * assaulting another Soldier by striking him on the jaw * failing to go at the time prescribed to his appointed place of duty * disobeying a lawful order * having in his possession two grams, more or less, of marijuana * being disrespectful in language towards his superior noncommissioned officer 5. Before a summary court-martial on or about 9 May 1978, at Fort Bragg, North Carolina, the applicant was convicted of being absent without leave (AWOL) from on or about 14 February 1978 through on or about 21 February 1978, and for breaking restriction on or about 11 February 1978. His sentence included confinement at hard labor for 15 days and reduction to the rank/grade of private/E-1. 6. The applicant accepted NJP on three separate occasions between 12 June 1978 and 28 November 1978, for the followings offenses: * being AWOL, from on or about 3 June 1978 until on or about 4 June 1978 * being AWOL, from on or about 25 August 1978 until on or about 31 August 1978 * failing to go at the time prescribed to his appointed place of duty, on or about 26 October 1978 * failing to go at the time prescribed to his appointed place of duty, on or about 27 October 1978 * failing to go at the time prescribed to his appointed place of duty, on or about 9 November 1978 * failing to go at the time prescribed to his appointed place of duty, on or about 17 November 1978 7. Before a special court-martial on or about 6 March 1979, at Fort Benning, Georgia, the applicant was convicted of the following offenses: * being AWOL, from on or about 15 January 1979 until on or about 23 January 1979 * willfully disobeying a lawful order, on or about 15 January 1979 * striking his superior commissioned officer by grabbing him about the collar with his hands, on or about 23 January 1979 * assaulting his superior noncommissioned officer (NCO) by striking him in the stomach with his knee and striking him on the back with a metal pipe, on or about 24 January 1979 * assaulting his superior NCO by hitting him in the chest with his forearm, on or about 24 January 1979 * damaging by breaking with a metal pipe, a single wood bedstead, of a value of about $8.00, a bed frame, of a value of about $8.34, a double pedestal desk, of a value of about $23.68, a lamp with shade, of a value of about $23.62, and a chair straight without arms, of a value of about $15.00, military property of the U.S., the amount of said damage being in the sum of about $78.64 8. The applicant's sentence included confinement at hard labor for 105 days, forfeiture of $100.00 pay per month for three months, and separation from service with a BCD. 9. The convening authority disapproved the findings of guilty to the charge damaging by breaking with a metal pipe, a single wood bedstead, of a value of about $8.00, a bed frame, of a value of about $8.34, a double pedestal desk, of a value of about $23.68, a lamp with shade, of a value of about $23.62, and a chair straight without arms, of a value of about $15.00, military property of the U.S., the amount of said damage being in the sum of about $78.64. 10. The convening authority approved the sentence as adjudged. The service of the sentence to confinement at hard labor for 105 days was deferred on 6 March 1979 and the deferment was rescinded effective 6 April 1979. The execution of that portion of the sentence adjudging confinement at hard labor for 105 days was suspended for 180 days at which time, unless the suspension was sooner vacated, would be remitted without further action. The application of the forfeiture was deferred until the sentence was ordered. The convening authority also ordered the record of trial forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. Pending completion of appellate review, the applicant was retained in his command. 11. The U.S. Army Court of Military Review affirmed the special court-martial findings and sentence in the applicant's case on 19 June 1979. The court also ordered that Special Court Martial Order Number 15, be corrected to read that he assaulted his superior NCO on or about 24 January 1979, by butting him in the chest with his head. 12. There is no evidence in the available record that shows the applicant petitioned the U.S. Court of Military Appeals for a grant of review. 13. Special Court-Martial Order Number 33, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, Georgia on 27 August 1979, noted that the approved sentence had been finally affirmed and ordered the BCD executed. 14. The applicant was discharged on 3 January 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of a court-martial conviction. His service was characterized as bad conduct. a. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Parachutist Badge, the Expert Marksmanship Qualification Badge with Pistol Bar, and the Expert Marksmanship Qualification Badge with Rifle Bar. b. Item 14 on his DD Form 214 does not list any military education. 15. The applicant's record is void of documentation that confirms his completion of Jungle, Arctic, or Desert School or training courses. Item 17 (Civilian Education and Military Schools) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he completed the: * Recondo course in 1976 (three weeks) * Unit Armorer course in 1977 (one week) * Field Sanitation course in 1978 (one week) 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief. 1. Regarding the applicant’s request to upgrade his discharge to honorable, the Board found insufficient evidence to grant this portion of the applicant’s request. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had no personal meritorious awards, no wartime service and insufficient evidence of mitigating circumstances for the serious misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 2. Regarding the applicant’s request to correct his DD Form 214 by adding schools, which he attended, the Board found sufficient evidence to grant partial relief. The record indicates that the applicant attended the Recondo course, the Unit Armorer course and the Field Sanitation course, but there was no evidence of the other requested courses. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant’s discharge characterization or amending his DD Form 214 indicating completion of Jungle, Arctic, or Desert School or training courses. 2. However, the Board determined the evidence presented is sufficient to warrant a portion of the requested relief and recommends that the applicant receive appropriate documentation of schools he completed by adding the following to his DD Form 214 ending “80-01-03” in item 14: * Recondo course in 1976 (three weeks) * Unit Armorer course in 1977 (one week) * Field Sanitation course in 1978 (one week) 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 635-5 (Separation Documents), then in effect, governed the preparation of the DD Form 214. It stated that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. It also stated, in pertinent part, that item 14 (Military Education) will list formal in-service training courses of 40 hours or more successfully completed during the period of service covered by title, length in weeks, and month and year completed. This information is to assist the Soldier after separation in job placement and counseling; therefore, training courses for combat skills are not listed. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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. c. Chapter 11 of the regulation in effect at the time stated that a member would be given a BCD 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017895 6 1