ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170002058 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Letter * United States Court of Appeals for Veterans Claim Memorandum Decision * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge ) 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. Review of the applicant's service records show: a. He enlisted in the Regular Army on 31 January 1970. b. He served in Vietnam for 1 year, 1 months and 24 day. c. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 on 20 July 1970 (DA Form 2627-1, Record of Proceedings Under Article 15) for leaving his place of duty without proper authority on or about 18 July 1970. d. He accepted NJP under the provisions of Article 15 (DA Form 2627-1) on 6 December 1970 for failing to go at the time prescribed to his appointed place of duty on two occasions, without authority on or about 1 December 1970. e. His court-martial conviction is not available for review with this case. Other documents show he was convicted by a general court-martial on 19 November 1971 for a. violating the Uniform Code of Military Justice. The court sentenced him to a bad conduct discharge, confinement at hard labor for 9 months, forfeiture of all pay and allowances, and reduction to E-1. The sentence was approved except for the bad conduct discharge. The record of trail was forwarded to The Judge Advocate General of the Army for appellate review. f. On 7 January 1972, the United States Army Court of Military Review affirmed the findings of guilty and the sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that the findings of guilty and only so much of the sentence as provides , in part, for bad-conduct discharge, confinement at hard labor for six months, and reduction to the grade of PVT/E-1 should be approved, the same as thus modified are hereby affirmed. h. On 15 May 1972, the Headquarters 101st Airborne Division (Airmobile) and Fort Campbell, notified the Soldier of the decision by the United States Army Court of Military Review of affirmed the findings of guilty and the sentence. i. General Court-Martial Orders Number 26, issued by the Headquarters 101st Airborne Division (Airmobile) and Fort Campbell, KY on 17 October 1972, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. j. The applicant was discharged on 21 December 1973. His DD Form 214 shows he was discharged in the rank/grade of PVT/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) chapter 11, with an under other than honorable conditions characterization of service and he was issued a Bad Conduct Discharge Certificate. * He completed 1 year, 10 months, and 11 days of active military service with lost time from 30 November 1971 to 29 November 1973 for 730 days lost * He was awarded or authorized Vietnam Service Medal and National Defense Service Medal 3. By regulation, AR 635-200, 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. 4. 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. 1. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the relatively short term of service completed prior to a pattern of misconduct and a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/28/2019 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 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel, as a result of court-martial. a. Paragraph 1-13a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 1-13b 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 1-13c 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 11-2 states that a Soldier will be given a bad conduct 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. 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 Army Board for Correction of Military Records 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- 1. 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.