ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 April 2019 DOCKET NUMBER: AR20160018883 APPLICANT REQUESTS: His dishonorable discharge 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), dated 14 October 2016 * self-authored statement, dated 14 October 2016 * State of Maryland Department of Public Safety and Correctional Services FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC73-993 on 8 January 1974. 2. The applicant states: a. He entered the military in July 1969, desperately seeking a father figure and guidance. It did not take him long to figure out it was not going to be as he had hoped. He was an 18 year old black man out in the world for the first time and it was ugly. He experienced prejudice for the first time in his life and it was ugly. Integration was new to a lot of the Soldiers but then he found out that some of the officers were prejudiced too, and they were representatives of Uncle Sam. b. He was sent to Vietnam in 1970 with no basic training or advance individual training and he carried a rifle seven days a week. It put a lot of pressure on him mentally. A lot of his fellow Soldiers started using drugs as a way to help cope with their situation. He stayed strong as long as he could but then found himself using before long. For the first time in his life he was using drugs as a way to cope with his situation. c. He served over 11 months in Vietnam before he was arrested and charged. He was defended by a military appointed lawyer because he had no money for an outside attorney. He following his lawyer's advice and ended up with a 6-month sentence at Fort Leavenworth, Kansas and a dishonorable discharge. d. He was young and inexperienced in life and he was misguided because there was no one to help him. This type of injustice happened to a lot of young African American men in the 1960s and the 1970s. It has been 47 years since he entered the military and he is now 65 years old. His entire life has been overshadowed by this injustice. He would like to know what life would feel like with this burden lifted. He does not deserve the punishment that he has been enduring for the past 47 years. 3. The applicant enlisted in the Regular Army on 9 July 1969. 4. The applicant accepted nonjudicial punishment (NJP) on 9 February 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully destroying military property by breaking windows, on or about 6 February 1970, and for willfully disobeying a lawful order, on or about 7 February 1970. 5. The applicant served in the Republic of Vietnam from on or about 10 September 1970 through on or about 21 August 1971. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following dates for the indicated offenses: * on 27 January 1971, for failing to go to his appointed place of duty, on or about 16 January 1971 * on 4 July 1971, for sleeping at his post, on or about 2 July 1971, and for being absent from his place of duty, on or about 6 July 1971 7. General Court-Martial Order Number 96, issued by Headquarters, U.S. Army Support Command, Siagon on 1 December 1971, shows the applicant was convicted on 4 October 1971, pursuant to his pleas, of: * wrongfully possessing 0.24 grams, more or less, of a habit forming narcotic drug (heroin), on or about 13 August 1971 * wrongfully selling a habit forming narcotic drug (heroin), on or about 13 August 1971 * wrongfully having in his possession a trace of a habit forming narcotic drug (heroin), on or about 21 August 1971 His sentenced included his reduction to pay grade (E-1), forfeiture of all pay and allowances, confinement at hard labor for 10 years, and separation from service with a dishonorable discharge. 8. The convening authority approved only so much of the sentence as provide for a dishonorable discharge, confinement at hard labor for 18 months, forfeiture of all pay and allowances, and reduction to pay grade E-1. He ordered the Record of Trial forwarded to the Judge Advocate General of the Army for review by the Court of Military Review and, pending completion of appellate review, the applicant's confinement to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas. 9. General Court-Martial Order Number 743, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 29 June 1972, noted that the convening authority's sentence to a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 18 months, and reduction to pay grade E-1 had been affirmed, set aside the statement "and the confinement will be served therein." The finding of guilty for wrongfully having in his possession 0.24 grams, more or less, of a habit forming narcotic drug (heroin) was also set aside and dismissed. 10. Special Orders Number 145, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 19 July 1972, ordered the applicant's discharge effective 20 July 1972. 11. The applicant was discharged on 20 July 1972, under the provisions of Army Regulation 623-200 (Personnel Separations – Enlisted Personnel), paragraph 11-3a, as a result of a court-martial conviction. His DD form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he received a Dishonorable Discharge Certificate. 12. The ABCMR denied the applicant's request for an upgrade of his discharge on 9 January 1974. 13. Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 14. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. Based upon the type of misconduct that resulted in the discharge and the passage of time, the Board found that granting clemency to the applicant by upgrading his characterization of service to Under Honorable Conditions (General) was appropriate. 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his characterization of service to Under Honorable Conditions (General). 2. The Board further 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 characterization of his discharge to Honorable. 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. c. Chapter 11 of the regulation in effect at the time (Personnel Separations – Enlisted Personnel) provides that a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 2. 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. 3. 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) AR20160018883 4 1