ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20170000635 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Report of Separation from Active Duty) to show his service is characterized as honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * DD Form 214 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. The applicant states, in effect, he served his entire 2 year period honorably, however, he received an Article 15 and a court-martial. He also states a Department of Veterans Affairs Form 21-4138 was provided, however, this form was not provided with his application. 3. The applicant enlisted in the Regular Army on 28 June 1974 for 2 years. He held military occupational specialty 94B (Food Service Specialist). He was assigned to Greece from 10 February 1974 to 10 February 1975 and to Germany from 12 February to 4 December 1975. 4. On 25 July 1975, he was convicted by a special court-martial of being absent without leave (AWOL) from 2 to 13 June 1975. The court sentenced him to a forfeiture of pay and restriction to the limits of the military installation. 5. On 1 October 1975, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for breaking restriction on 3 August 1975 and for being absent from his appointed place of duty on 6 August 1975. His punishment for these offenses is unavailable. 6. On 26 November 1975, he was issued a bar to reenlistment. His court-martial conviction is listed as a factor that was taken into consideration. The issuing official also stated the applicant was constantly recalcitrant involving any type of military duty assigned to him. His personal appearance was very poor. He could not train for a job; when assigned a job, he was very apathetic, disinterested and required constant supervision. The applicant was also reluctant to acknowledge any type of authority. He was currently pending general court-martial charges for striking a commissioned officer, disobeying both commissioned and noncommissioned officers and being absent without authority. His commander did not believe he should be allowed further military service at the time nor in the future. He was in pre-trial confinement at the U. S. Army Corrections Facility Manheim, Germany. The bar to reenlistment was hand carried to the confinement facility and he did not wish to make a statement. He also refused to sign. On 16 January 1976, the bar to reenlistment was approved. 7. General Court-Marital Order 36, shows on 7 May 1976, the applicant was tried and convicted of disobeying a lawful order on multiple occasions, disobeying a lawful command, striking an officer, communicating a threat, violating a lawful regulation, and attempting to escape custody. The court sentenced him to confinement at hard labor for 11 months, a forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad conduct discharge. His sentence was a part of a pretrial agreement. He was assigned to Fort Leaven, KS, effective 20 May 1976. 8. On 13 July 1976, the convening authority approved the sentence and except for the bad conduct discharge, ordered it executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. The applicant remained in confinement. 9. The applicant was placed on excess leave pending completion of the appellate review process. 10. DA Form 268 (Report of Suspension of Favorable Personnel Action) shows the applicant was assigned to the Personnel Control Facility, Fort Sill, OK from the U.S. Disciplinary Barracks, Fort Leavenworth, KS effective 9 May 1977. 11. General Court-Martial Order Number 27, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, on 27 May 1977 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed. 12. On 10 June 1977, the applicant was discharged. His DD Form 214 shows he was discharged under the provisions of chapter 11, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), as a result of court-martial with an under other than honorable conditions characterization of service, in pay grade E-1. He completed 1 year, 9 months, and 23 days of active military service with 551 days of lost time, 125 days were lost due to him being in an excess leave status. He was also issued a Bad Conduct Discharge Certificate. 13. The applicant contends the majority of his service was honorable. However, based on his service record he entered the RA in June 1974 and he received his first court-martial in July 1975, which was after he had served about 1 year, following this offense he received NJP and an additional court-martial for some serious offenses. 14. 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. 15. 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 guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the multiple UCMJ offenses and, in the Board’s opinion, a lack of mitigating reasons presented by the applicant, the Board concluded that the characterization of service received by the applicant at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 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 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the separation of enlisted personnel. a. 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. 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. 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. 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. 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. 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. 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 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. 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) AR20170000635 5 1