ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 April 2019 DOCKET NUMBER: AR20170000326 APPLICANT REQUESTS: The applicant, on behalf of her late husband, a former service member (FSM), requests his characterization of service be changed from dishonorable to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Indiana State Department of Health Certificate of Death 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. 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 AC92-07896 on 28 June 1995. 3. The spouse of the FSM states President Barack Obama signed an executive order that dishonorable discharges be changed to general; because of the executive order of amnesty her husband is entitled to have his discharge changed. 4. On 2 August 1971, the FSM enlisted in the Regular Army at the age of 18. His records shows he had 10 years of education. 5. A record of court-martial conviction shows the FSM was: * Found guilty of assault on another enlisted member * Found guilty of disobeying an NCO * Found guilty of using disrespectful language to an NCO * 6. On 14 January 1972, the FSM received non-judicial punishment (NJP) for being absent without leave (AWOL) from on or about 2 January 1972 to on or about 5 January 1972. 8. On 9 March 1972, the FSM commander notified the applicant he was being considered for elimination from the service for unfitness, under the provisions of paragraph 6a (1), Army Regulation (AR) 635-212 and advised him of his available rights. 9. On 20 March 1972, the commander recommended the FSM be required to appear before a board of officers for the purpose of determining whether the individual should be discharged before his expiration of term of service (ETS) for unfitness, specifically for frequent incidents of a discreditable nature with civil or military authorities; he recommended an undesirable discharge. The reasons for the commander’s proposed actions were: * NJP for being AWOL * Found guilty in SCM for assault * Found guilty in SCM for disobeying a lawful order * Repeated counseling’s for his attitude 10. On 30 May 1972, the FSM was advised by legal counsel and acknowledged that he understood his available rights. He waived consideration of his case by a board of officers and submitted a statement on his behalf. He states his Drill Sergeants said he was a good Soldier and had potential. He didn’t have money to get back from leave because he gave it to his mother who broke her leg and needed a cast. His father came home a short time later and he gave him the money to return; that’s when he received his first NJP for being AWOL. He received another NJP for assault on another Soldier who spoke up for him saying that the applicant never did anything like that before and got along with everyone. The next NJP was for not running and using profanity towards the Drill Sergeants. Five months later he was notified a recommendation of an undesirable discharge was being processes. The commander wrote that he was a constant trouble maker and had no intension of Soldiering which he believes was false. He had been on trainee status since 10 February 1972 with another Soldier; they pulled detail Monday through Friday. He felt that if you put everyone who got into trouble together, you would have a small Army within the unit. He was told that he was Soldiering and that he would be put on orders but never did. He requested that it would be taken into consideration to give him a general discharge. 11. On 20 March 1972, the appropriate authority approved the recommendation for discharge of the applicant and directed he be issued an undesirable discharge certificate. 12. On 26 June 1972, the FSM was discharged accordingly. He completed 10 months and 15 days of active service with approximately 8 days of lost time. 8. 14. Army Regulation 635-200 provides states members are separated under chapter 14, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment when the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future the basis for separation would continue or recur; the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. The issuance of a discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 14. The FSM’s wife states President Obama signed an executive order stating dishonorable discharges will be changed to general. 15. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board has is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 16. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions and the FSM’s service record were carefully considered. The President of the United States did not direct all less than honorable discharges to be upgraded as the applicant states; however, the Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. He received a UOTHC discharge after multiple instances of misconduct. The Board agreed to grant the FSM clemency based on his statement and the evidence submitted by recommending an under honorable conditions characterization. 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 for the period ending 26 June 1972 showing his characterization of service as general, under honorable conditions. 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 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. 1. 2. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 6a(1) of the regulation provided, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge. b. Paragraph 6a(4) of the regulation provided that members who have established a pattern for shirking were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge. 3. Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was furnished when the individual had conduct ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court- martial. The regulation also provided that an individual may, where otherwise ineligible, receive an honorable discharge if he had, during his current enlistment, period of obligated service, or any extensions thereof, received a personal decoration, or was separated as a result of a disability incurred in line of duty. b. A general discharge under honorable conditions was furnished for an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. A discharge under honorable conditions was authorized if an individual had been convicted of an offense by general court-martial or convicted by more than one special court-martial in the current enlistment. However, this decision was discretionary. 6. On 25 July 2018, a memorandum from 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 on the basis of 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. //NOTHING FOLLOWS//