ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 August 2019 DOCKET NUMBER: AR20170001581 APPLICANT REQUESTS: an upgrade of his characterization of service from a bad conduct discharge (BCD) to an under conditions other than honorable, an under honorable conditions, or an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 he is requesting an upgrade to better himself. 3. A review of the applicant’s service record shows: a. He enlisted on 29 November 1973, in to the Regular Army (RA). He served in Germany from 5 June 1974 to 13 September 1975. b. His DA Form 2-1 (Personnel Qualification Record) reflects that he was imprisoned for a period of 221 days between 4 September 1975 through 20 May 1977. c. His DA Form 2-2 (Record of Court Martial Conviction) reflects that he had two special court martials and one general court martial. d. On 18 October 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification each of using disrespectful language towards a superior noncommissioned officer, and impairing the loyalty, duty, and discipline of members of the Armed Forces. e. On 16 February 1975, the applicant appealed NJP under the provisions of Article 15 for one specification of theft. His appeal was denied and on 24 February 1975, he accepted NJP under the provisions of Article 15 for one specification of theft. f. On 12 March 1975, a Bar to Enlistment/Reenlistment was initiated for unsatisfactory conduct, very poor attitude and efficiency. The chain of command subsequently approved the bar to reenlistment. g. On 9 April 1975, the applicant accepted NJP under the provisions of Article 15 for one specification of failure to obey a lawful order by a superior noncommissioned officer. h. Special Court Martial Order (SCMO) Number 40, dated 22 September 1975, reflects that the applicant plead not guilty but was found guilty of one specification of violating a lawful general regulation, by wrongfully selling a controlled substance (amphetamines). His sentence consisted of a BCD, forfeiture of $150 pay per month for six months, three months confinement with hard labor, and reduction to( private) PVT/E-1. i. SCMO Number 533, dated 21 November 1975, states that the period of confinement adjudged on 4 September 1975 has been served, and the applicant is restored to duty on 18 November 1975. j. On 26 March 1976, the applicant accepted NJP under the provisions of Article 15 for one specification of using disrespectful language towards his superior noncommissioned officer. k. On 20 September 1976, the applicant’s request for relief of his conviction was denied. The Judge Advocate General determined that a sufficient basis for relief under any of the four grounds set forth in Article 69 of the Uniform Code of Military Justice has not been established. l. On 24 May 1976 the applicant appealed NJP under the provisions of Article 15 for one specification of failure to be at appointed place of duty. His appeal was denied and on 29 May 1976, the applicant accepted NJP under the provisions of Article 15 for one specification of failure to be at appointed place of duty. m. SCMO Number 21, dated 22 June 1976, reflects that the applicant plead not guilty but was found guilty of one specification of disrespect towards his superior commissioned officer. His sentence adjudged on 29 April 1976 consisted of confinement to the unit area for a period of 60 days, hard labor without confinement for a period of 90 days and forfeiture of $240 pay per month for 3 months. n. On 13 October 1976, the United States Court of Military Review affirmed the sentence adjudged on 4 September 1975 by SCMO Number 40. o. General Court Martial Order (GCMO) Number 1, dated 13 January 1977, reflects that the applicant plead guilty and was found guilty of two specifications each of wrongfully having marijuana in his possession, and wrongfully selling marijuana. His sentence adjudged on 4 January 1977, consisted of confinement with hard labor for a period of nine months, forfeiture of all pay and allowances, and discharged from the service with a dishonorable character of service. p. The sentence was approved on 13 January 1977, and forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. q. SCMO Number 127, dated 31 March 1977, affirms the sentence adjudged in SCMO Number 4. It states that the confinement has been duly executed. r. He was discharged on 20 May 1977 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11 (Character of Service/Description of Separation). His DD Form 214 (Report of Separation from Active Duty), shows he completed 2 years, 10 months, and 21 days with 211 days of time lost from 4 September 11975 to 17 November 1975; 25 February 1976 to 25 February 1976; 24 November 1976 to 1 December 1976; and 4 January 1977 to 20 May 1977. It also shows in: * item 9a (Type of Separation), Discharge * item 9c (Authority and Reason), AR 635-200, paragraph 11-2, Separation Program Designator JJD (As a result of court-martial, other) * item 9e (Character of Service), Under Other Than Honorable Conditions s. GCMO Number 91, dated 18 November 1977, were set aside on 30 September 1977 and a rehearing authorized on the findings of guilty and the sentence. A rehearing has now been determined to be impracticable and the charges were dismissed. All rights, privileges and, and property of which the accused has been deprived by virtue of the findings of guilty and the sentence so set aside will be restored. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation, AR 635-200, in effect at that time, an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the long pattern of offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel: a. Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. b. 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. 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. 3. Court-martial convictions stand as adjudged or as 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. 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. 5. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001581 5 1