ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20160019311 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Letter of Support signed by spouse FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001056960 on 17 July 2001. 2. The applicant states that he apologizes for his actions during his last period of service in the Republic of Vietnam. His behavior was extremely inappropriate, immature and lacked the respect that the Army deserves. His multiple stressors of family and financial problems, as well as the death of his mother caused him to make a number of bad decisions during his military career. He has since grown spiritually and has learned how to adjust his behavior. Due to his unfortunate experience, he has learned alternative approaches to these type of situations. 3. The applicant provides a reference letter from his wife, dated 5 November 2016, which speaks of the applicant’s good character. She states that they own an automobile shop for over 30 years. He sponsors a children’s club against alcohol and drugs, he is not a bad man, but has made mistakes in his younger years. She further states that they have tried for a number of years to get help from the Department of Veterans Affairs and has not been successful. He desperately needs help. He is 73 years of age and has had a major stroke. 4. A review of the applicant’s service records show: a. Having prior service in the Army Reserves, he enlisted in the Regular Army (RA) on 7 April 1964. b. He served in the Vietnam from 12 October 1964 to 11 October 1965. c. He accepted nonjudicial punishment on 7 February 1966 for failure to be at his appointed place of duty. d. He was convicted by a general court-martial on 27 October 1967 for three specifications of being absent without authority from 27 May 1966 to 1 October 1966, 3 October 1966 to 31 May 1967, and from 28 July 1967 to 14 August 1967. The court sentenced him to a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 1 year. e. The convening authority approved the sentence on 17 November 1967 and forwarded the record of trial to The Judge Advocate General of the Army for review by a board of review. f. On 27 October 1967, the U.S. Army Board of Review (appellate review) rendered a decision that states having found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such findings of guilty and sentence are hereby affirmed. g. General Court Martial Order Number 308, dated 15 March 1968, affirmed the sentence and ordered it duly executed. h. The applicant was discharged on 1 April 1968. His DD Form 214 shows he was discharged in accordance with Army Regulation (AR) 635-204 (Dishonorable and Bad Conduct Discharges), Paragraph 1b with a bad conduct discharge. He completed 2 years, 2 months, and 9 days of active service with 2 days lost time. 5. By regulation, an enlisted person would be separated with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 6. 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 warranted. Based upon the type of misconduct, the demonstrated growth of the applicant through the character statement of the applicant’s spouse, as well as the passage of time, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) 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 Under Honorable Conditions (General). 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 (AR) 635-204 (Dishonorable and Bad Conduct Discharges), in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1b stated an enlisted person would be separated with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 2. Army Regulation 635-204 (Dishonorable and Bad Conduct Discharges) was later incorporated into Army Regulation (635-200 (Personnel Separations – Enlisted Separations). The regulation in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor. 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 (General Discharge) 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. Paragraph 3-7c (Under Other Than Honorable Conditions Discharge) states 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. d. Paragraph 3-11 (Bad Conduct Discharge) states 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. 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 Uniform Code of Military Justice, 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 Uniform Code of Military Justice 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) AR20160019311 4 1