ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20160019375 APPLICANT REQUESTS: * Clemency regarding his 1971 General Court-Martial conviction * Correction of his record to show he was absent without leave (AWOL) from Fort Bragg, NC for ten days * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement 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. Applicant states that he was only AWOL for ten days total and that his AWOL offenses occurred while he was incarcerated at Fort Leavenworth and could not return to Fort Bragg, NC due to a lack of funds. He was a scapegoat at his court-martial and there was no swearing in under oath, no evidence, and no defense counsel. He was just put away. He never had any assistance. His trial lasted only twenty minutes. The judge was upset. Private (PVT) X____ was the person who took the money from the victims. He, on the other hand, was a good forty feet away and it was dark. The accusers pointed out PVT X____. Even though PVT X____ received five years and a dishonorable discharge (DD) and applicant received three years and a DD, PVT X____ went home before he did. He was the scapegoat and it broke his heart to see the thug get off. He was prosecuted and punished as if he harmed someone. He has never taken anything ever in his life. When his defense attorney tried to make a closing statement, the judge told him “sit down, I don’t want to hear any of that foolishness.” 1. 3. A review of applicant’s service record shows the following: a. He enlisted on 20 December 1969 for a period of three years. b. He accepted nonjudicial punishment under the provisions of Article 15 on/for: * 27 August 1970, for being absent without leave (AWOL) for 120 days from 14 August to 24 August 1970; his punishment included reduction to E-1 * 14 January 1971, for a two month AWOL from 30 October to 31 December 1970, from Fort Bragg, NC; his punishment included reduction to E-2 * 29 March 1971, for a six day AWOL from 2 to 6 March 19971, Fort Benning, GA * 24 August 1971, for a two day AWOL from 16 to 18 August 1971, from Fort Benning, GA c. On 6 December 1971, applicant was tried before a General Court-Martial. He was acquitted of two specifications and convicted of two specifications. The specifications of which he was convicted included, along with four co-defendants, stealing approximately ten dollars by force from one Soldier and attempting to steal an undetermined amount of money by force from a second Soldier. The military judge sentenced applicant to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. He was confined at Fort Leavenworth, KS pending completion of appellate review. d. On 29 December 1971, the convening authority approved the sentence and except for the dishonorable discharge, ordered it executed. The record trial was forwarded to the Judge Advocate General of the Army for appellate review. e. The applicant's conviction was affirmed by the Army Court of Military Review and his sentence ordered executed on 21 March 1973. f. On 9 April 1973, applicant was discharged. His DD Form 214 shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) with a dishonorable characterization of service. He completed 1 year, 4 months, and 9 days of active service with 601 days of lost time. He was awarded or authorized: * Marksman Badge (M-16 Rifle) * Sharpshooter Badge ((M-16 Rifle) * Sharpshooter Badge (M-60 Machine Gun) * Sharpshooter Badge (M-79) * National Defense Service Medal * Parachutist Badge * 4. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. By regulation (AR 635-200), a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 6. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that they could reach a fair and equity decision without a personal appearance by the applicant. Additionally, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple AWOL offenses and the violent nature of offenses, the Board concluded that no relief was 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. 5/23/2019 X CHAIRPERSON Signed by: 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 (Active Duty Enlisted Administrative Separations), currently in effect, prescribes the policies and procedures pertaining to separation of enlisted personnel. b. 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. c. 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. d. Paragraph 3-7c 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. c. Paragraph 3-10 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. d. Paragraph 3-11 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, USC, section 1552(f), provides that with respect to courts-martial ABCMR action may extend only to the correction of actions taken by reviewing authorities or action on the sentence of a court-martial for purposes of clemency. 4. 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 1. 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. 5. 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. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. Army Regulation 635-5 Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. It requires a mandatory entry for lost time during the period covered by the DD Form 214 in item 29. Time lost is verified and must be subtracted from Net Active Service This Period (block 12c) if the lost time was not "made good." If the ETS (expiration term of service date) was adjusted as a result of lost time and the Soldier served until ETS, the lost time was "made good." Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits. However, the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty (block 12a) and separation date (block 12b) is creditable service. Time lost after ETS is non–chargeable time under 10 USC 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits. For enlisted Soldiers, show inclusive periods of time lost to be made good under 10 USC 972, and periods of non–chargeable time after ETS. 7. The Manual for Courts-Martial, Part II, Rules for Courts-Martial, Chapter X, Sentencing, Rule 1003(b)(8)(B) & (C) state, in pertinent part, a dishonorable discharge applies only to enlisted persons and may be adjudged only by a general court-martial. A dishonorable discharge should be reserved for those who should be separated under conditions of dishonor, after having been convicted of offenses usually recognized in civilian jurisdictions as felonies, or offenses of a military nature requiring severe 1. punishment. A bad-conduct discharge is less severe than a dishonorable discharge and is designed as punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature. 8. 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.