ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 September 2019 DOCKET NUMBER: AR20170005772 APPLICANT REQUESTS: an upgrade to his bad conduct discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 enlisted in the Army for the duty of one year active and five years in the Reserves. The Korean conflict broke out and his discharge was frozen and changed for the duration of the conflict. He served for a total of two and half years and was discharged with a Bad Conduct Discharge. Later the Army awarded him benefits to attend the Fort Worth Baptist Seminary. The court martial was not in error, but it was a very expensive penalty for a kid who was only drunk and disorderly. The one and only charge in my career, which the VA saw fit to overlook. 3. The applicant’s military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed that the FSM’s records were lost or destroyed in that fire. However, this case is being considered using reconstructed records which primarily consist of his DD Form 214 (Report of Separation from the Armed Forces of the United States), V.A Form 3101 (Request for Army Information), and Special Court Martial Orders 42 a. However, the applicant entered active service on 14 September 1949. He received an Honorable discharge and reenlisted on 11 May 1950. He served in Germany. b. On 18 June 1951, he was convicted by special court-martial for one specification of $14.00 worth of damage to a vehicle, one specification of disorderly conduct in uniform in a public place, “The Club Hotel”, and one specification of disorderly conduct in uniform in a public place, “The Police Station”. His sentence consisted of discharge from the service with a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 6 months. c. On 26 July 1951, the convening authority approved the sentence and ordered it executed, but the execution of that portion thereof adjudging bad conduct discharge is suspended until the accused’s release from confinement . The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review. Pending completion of appellate review the accused will be transferred to the command of the commanding general, Second Army. Pending such transfer the accused will be confined in the European Command Military Prison, Mannheim, Germany. d. The applicant was in confinement from 18 June 1951 to 17 November 1951. e. On 17 November 1951, the applicant was discharged under the provisions of Army Regulation 615-364 (Enlisted Personnel – Discharge Dishonorable and Bad Conduct), paragraph 1b. He was issued a Bad-Conduct character of separation. His DD Form 214 (Report of Separation from the Armed Forces of the United States), shows he completed 1 year, 9 months and 2 days with 152 days of lost time. 4. By regulation (AR 615-364) 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. The Board should 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 there is sufficient evidence to grant partial relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The Board agreed the characterization for the misconduct was severe, and 70 years has passed since the events that led to his discharge. The Board agreed to grant clemency in the form of an under honorable conditions (General) characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 17 November 1951 showing his character of service as under honorable conditions (General). 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 (AR) 635-200 (Personnel Separations – Enlisted Soldiers), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of the 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 (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other Than Honorable Conditions) 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, homosexuality, security reasons, or for the good of the service. d. Paragraph 3-11 (Bad Conduct Discharge) 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. e. Paragraph 3-9 (Uncharacterized Separations) states a separation will be described as an entry level separation if processing is initiated while a member is in entry level status, except when characterization under other than honorable conditions is authorized. 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 UCMJ, 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 UCMJ 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. 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 form 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 the 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 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. 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. //NOTHING FOLLOWS//