ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170004562 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 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) * Self-Authored Statement 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 provides a self-authored statement which says: a. He enlisted in the Army in 1964, just before thanksgiving for three years. Two days before he left home he received the draft notice. He wanted to serve his time in the armed services, he was proud to be enlisted and his parents were proud of him. b. He was given 30 days leave, before his new assignment, he was headed to Vietnam. On his flight home from German he encountered protesters, he felt worthless. He was shocked and hurt by the very people he was about to go to war for and possibly die for. While he was at home, he went into depression and after 1 year he went back, he was given 9 months in jail and was released. He tried to reenlist at Moses Lake, WA, but was denied. He was a good Soldier until those protesters degraded him for Vietnam. He wanted to go back and make his name good again. He has been a member of the American Legion, at Lacey, WA since 1993. He went back to college and received an associate’s degree in business management, he planned on continuing his education and getting a Bachelor of Arts degree. He tries to be a good citizen of the United States, and has worked for more than 25 years in various positions. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 November 1954. b. On 13 October 1967, General Court Martial Order Number 110, he was convicted by a general court-martial for one specification of being absent without leave (AWOL) from 1 July 1966 to 9 July 1967. He was sentenced to forfeit all pay and allowance, confinement at hard labor for one year, to be reduced to private E-1, and to be dishonorably discharged from the service. The convening authority approved the sentence as provided for confinement and forfeitures until completion of the appellate review. c. On 17 November 1967, the U.S. Army Court of Military Review affirmed the findings of guilty and only so much of the sentence as provided for bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 9 months and reduction to the grade of E-1 should be approved. The sentence is modified accordingly. The findings and sentence modified are affirmed. d. General Court Martial Order Number 13, dated 4 January 1968 states that only so much of the sentence promulgated in General Court Martial Order Number 110, Headquarters, Fort Lewis, WA, dated 13 October 1967, as provided for bad conduct discharge, forfeiture of all pay and allowances due on and after the date of the convening authority's action, confinement at hard labor for 9 months, and reduction to the grade E-1, adjudged 26 September 1967, has been affirmed. Under the provisions having been complied with, the sentence, as thus modified; will be duly executed. e. On 16 January 1968, he underwent a physical examination and the examiner found him qualified for punitive discharge. f. He was discharged on 22 January 1968. His DD Form 214 shows that he was discharged under the provisions of AR 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge), paragraph 1b, for conviction by a general court-martial, SPN 292. His characterization is under conditions other than honorable. He had served 1 years, 7 months, and 12 days of total active service with 1542 days of time lost. 4. By regulation AR 635-204, paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 5. In reaching its determination, the Board can consider the applicants 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 lengthy AWOL offense in the record that resulted in the discharge and the applicant failing to provide sufficient character evidence to show that he has learned and grown from the events leading to his discharge, 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. 0 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. AR 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 3. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic policy 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. 4. 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. 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 1. 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.