ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20170004474 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of 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. The applicant states he was in Vietnam in 1970 when he was court-martialed for threatening a captain, which never happened. He was transferred from the 4th Infantry Division to the 23rd Infantry Division, and when he got there, the sergeant told him he had to do hard time for 3 days until stand down. He was already in country for 18 months when he it should have been 12 months. They put him on a bunker for guard duty. He had a profile for running and for combat boots. When the 3 days was up, he was told to report to the helicopter port but they put him on kitchen patrol duty instead. During his court-martial, there were two corporals who were not there but still said that he threatened the captain. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 6 June 1969. b. On 14 July 1969, at Fort Dix, NJ, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 for breaking into a wall-locker and stealing money from other Soldiers. c. On 20 August 1969, at Fort Lewis, WA, he accepted NJP for willfully disobeying a lawful order from a non-commissioned officer. d. He served in Vietnam from on or about 2 November 1969 to 1 January 1971. a. e. On 19 June 1970, in Vietnam, he was convicted by a special court-martial of one specification committing an assault against a sergeant by pointing a loaded weapon in his direction and one specification of being absent without leave from 6 to 16 June 1970. The court sentenced him to confinement at hard labor for 2 months, forfeiture of pay for 4 months, and reduction to the lowest enlisted grade of E-1. f. On 11 October 1970, he was again convicted by a special court-martial of one specification of disrespecting a commissioned officer, one specification of willfully disobeying a lawful order, and one specification of communicating a threat to kill his commissioned officer. (1) The court found him guilty and sentenced him to forfeiture of $75.00 pay per month for 5 months, confinement at hard labor for 5 months, and a bad conduct discharge. (2) On 10 December 1970, the convening authority approved the sentence and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. (3) On 5 April 1971, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. g. On 2 February 1971, in Vietnam, he accepted NJP for communicating a threat to break a commissioned officer's nose. h. The applicant was discharged on 1 October 1971. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, with a bad conduct discharge. He completed 1 year, 2 months, and 7 days of creditable active military service with lost time from 6 to 15 June 1970 and excess leave from 26 February to 1 October 1971. His D Form 214 also shows he was awarded or authorized the National Defense Service Medal. 4. By regulation (AR 635-200), a Soldier 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. 5. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing upgrade discharge requests, the Board determined that relief was not warranted. One outcome discussed was to grant clemency based upon the passage of time and the age of the applicant at the time, clemency was appropriate. However, based upon the short term of service completed prior to the misconduct beginning, as well as the seriousness of some of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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. 4/29/2019 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 provides for the separation of enlisted personnel: a. 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. b. 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. c. 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. 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, 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. 4. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in 1. determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: • An applicant's candor • Severity of misconduct • Length of time since misconduct • Acceptance of responsibility, remorse, or atonement for misconduct • The degree to which the requested relief is necessary for the applicant • Character and reputation of applicant • Meritorious service in government or other endeavors • Evidence of rehabilitation and job history • Availability of other remedies • Whether misconduct may have been youthful indiscretion • Character references