ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20170007395 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) * State of North Carolina criminal record search * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 2-2 (Insert Sheet to DA Form 2, Record of Court Martial Conviction) * DA Form 2627 (Record of Proceeding under Article 15, Uniform Code of Military Justice (UCMJ) * Special Court Martial Order Number (SPCMO) 23 * Four Character References 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 with his time served, he feel that the punishment was too harsh and unjust. He was a young man away from home and under a lot of stress, due to family and financial stressors. He admits and is sorry for his wrong doing and is still hurting from the judgment that was placed upon him after all these years. To undo this injustice, he feels that his discharge should be upgraded to general under honorable conditions, so that he will meet the requirements for some benefits. 3. The applicant provides: a. A copy of The State of North Carolina criminal record search, dated 17 April 2017, which states that no record was found for the applicant. b. His DD Form 214 which shows his service ending on 13 February 1980. a. c. The DD Form 2-2 which shows that he received a court martial on 2 February 1979. d. His DD Form 2627 showing he received nonjudicial punishment on 11 May 1977. e. SPCMO Number 23, dated 4 April 1974, shows he was charged with a violation of the uniform code of military justice. f. The four character references stated in part that the applicant is dependable, honest, trustworthy, a humble and God-fearing man. He is highly intelligent and has awesome potential to excel in whatever he puts his mind to. He has always taken the role as a leader and dedicated to the cause no matter what it is. He takes pride in everything he does and he is remorsefulness for past mistakes and his goals is to continue making a positive contribution to society. 4. The applicant’s service record shows: a. He entered the Regular Army on 18 June 1976. b. He accepted nonjudicial punishment (NJP) on 11 August 1977, for failure to be at the appointed place of duty. c. He underwent a medical examination on 21 June 1979 and the examiner qualified the applicant for release. d. On 2 February 1979 he was convicted by special court martial of one specification of wrongfully using a ration control plate belonging to another service member, one specification of wrongfully attempting to use a ration control plate belonging to another service member, on specification of wrongfully purchasing goods from illegal transfer or production of income through sale, barter or exchange; e.g. black-marketing activities, one specification of stealing $400 from the another service members wallet and one specification of wrongfully having in his possession an identification car in words and figures of another service member. e. The court sentenced him to a bad-conduct discharge, to be confined for a period of 6 months, to forfeit $200 pay per month for six months, and to be reduced to the grade of E-1. f. SPCMO Number 23, dated 4 April 1979, approved the sentence on and ordered the sentence executed by the convening authority upon completion of the appellate review. a. g. The sentence was affirmed on 17 September 1979 to a bad-conduct discharge, confinement for six months, forfeiture of $200 pay per month for six months, and reduction to E-1. h. SPCMO Number 231, dated 14 December 1979, under the provisions of Article 71(c) had been complied with, and the bad-conduct discharge would be duly executed. That portion of the sentence pertaining to confinement had been served. i. He was discharged on 13 February 1980. His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, JJD (court martial, other). His characterization is under other than honorable conditions. He completed 3 years, 3 months and 6 days of active service. He had lost time from 2 February 1979 to 21 June 1979. 5. The Army Discharge Review Board, by letter, on 7 March 1983, to applicant after careful consideration of his military records and all other available evidence, determined that he was properly and equitably discharged and denied his request. 6. On 29 October 2018, the applicant requested a status of his application. His congressman requested a status through congressional inquiry. The congressional liaison and inquiries office, by letter on 11 December 2018 and 5 January 2018, responded to their inquiries and informed them that his application is still being processed by the Board. 7. By regulation (635-200), paragraph 11-2, in effect at the time states a member 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. 8. By regulation, paragraph 11-6, in effect at the time states a member placed on excess leave with pay pending completion of appellate review may be discharge without returning to a military installation when the sentence is affirmed. 9. 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 discharge upgrade requests, the Board determined that relief was warranted. Based upon the type of misconduct which led to the applicant’s discharge and the character evidence submitted by the applicant to show that he has learned and grown from those events, the Board concluded that granting clemency by upgrading his discharge characterization to Under Honorable Conditions (General) was appropriate. 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 the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 6/12/2019 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states an honorable discharge is a separation with honor. 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 (General discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or discharge under less than honorable conditions. When member’s service is characterized as general, except when discharge by reason for unsuitability, misconduct, or security, the specific basis for such separation will be included in the member’s military personnel record. 3. 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- 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 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 1. 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.