ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20170007419 APPLICANT REQUESTS: his other than honorable discharge be upgraded to a general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 149 continuation sheet * DD Form 214 (Report of Separation from Active Duty) 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 believes the record to be in error or unjust because actions taken during his administrative separation board reflect an unjust that can only be corrected by the Army Board for Correction of Military Records. He is requesting this of the board of corrections in lieu of the army discharge review board, because his separation occurred more than 15 years ago, and Title 10 U.S.C.S. 1553 limits review of discharges more than 15 years old to the board of corrections. This restriction means the board of corrections is the only remaining administrative remedy available. 3. The applicant states he joined the Army at the age of 19 when he was young and wreckless. He stole a Sansui stereo from PVT B_ in room 316 at Johnson Barracks without his permission, and continues to regret what he did. He deserved to get charged for what he did, but believes the findings in his case went too far. His confinement at hard labor camp for nine months should have been sufficient, but he forfeited all his pay and allowances. He is asking the Board to consider his request and upgrade his discharge to general, under honorable conditions. 4. The applicant provided his DD Form 214 that shows, on 29 June 1978, he was discharged under other than honorable conditions by authority of general court-martial order number 12. 5. A review of the applicant’s service records show: a. On 13 August 1973, he enlisted in the Texas Army National Guard (TXARNG) for a period of 6 years. b. On 1 August 1975, special orders 148, issued by the State of Texas Adjutant General’s Department, shows the applicant was discharged with a general discharge, effective on 15 September 1975, due to involuntary order to active duty. c. On 25 July 1975, letter orders E-07-159, issued by Headquarters, Fifth United States Army, show the applicant was ordered to active duty for a period of 19 months effective on 16 September 1975. d. His DA Form 2-1 (Personnel Qualification Record) shows: * he attained the rank of specialist (SPC)/E-4 on 1 September 1976 * he served in Germany from 10 October 1975 to 6 February 1977 * he was confined for 227 days from 7 February 1977 to 21 September 1977 e. His DA Form 2-2 (Record of Court-Martial Convictions) shows: * charged with larceny between 8 and 11 October 1976 * charged with marijuana possession on or about 18 November 1976 f. He accepted non-judicial punishment (NJP) for the following: * on 1 July 1976 for failure to obey lawful order * on 16 November 1976 for wrongful possession of a smoking pipe containing trace marijuana, and operating a privately owned vehicle without a valid U.S. Army Europe (USAREUR) operator’s license g. On 19 November 1976, his commander recommended he be barred from reenlistment for unsatisfactory conduct and efficiency due to his NJP acts of misconduct. h. On 22 November 1976, the applicant was furnished a copy of the recommendation, and was counseled and advised of the basis for the recommendation. He did not submit a statement on his behalf. i. On 30 November 1976, the bar to reenlistment was approved. j. On 7 February 1977, he was convicted by a general court-martial. His sentence included hard labor for nine months, forfeit all pay and allowances, reduction to the grade of private E-1, and a bad conduct discharge. The charges and specifications included: * charge I: between 8 and 11 October 1976, steal a Sansui four-channel stereo receiver, Teac stereo cassette deck, and two Sansui speakers, value $890.00 * Charge II: wrongful possession of a smoking pipe containing marijuana residue * the record of trial was forwarded to the Judge Advocate General of the Army for review by a court of military review * pending completion of appellate review, the applicant was confined in the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, KS k. On 19 September 1977, orders 183-6, issued by the USDB, U.S. Army Combined Arms Center, Fort Leavenworth KS, show he was reassigned to the Personnel Processing Facility at Fort Sill, OK, and restored to duty pending completion of appellate review and execution of the bad conduct discharge. l. On 19 June 1978, General Court-Martial Order Number 12, published at Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, shows the provisions of Article 71(c) have been complied with, and the sentence will be duly executed. m. On 28 June 1978, orders 179-85, published at Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, shows he was discharged from the USAR effective on 29 June 1978. n. DD Form 214 (Report of Separation from Active Duty) that shows he was discharged from active duty on 29 June 1978 in accordance with general court-martial order number 12. Block 9f (Type of Certificate Issued) shows he was issued a DD Form 259A (Bad Conduct Discharge). He received an under other than honorable conditions characterization of service. He completed 2 years, 2 months and 0 days of active service during this period. He had 1 year, 3 months, 27 days of foreign service in Germany. 6. A FCUSA Form 0-1072b, dated 11 December 1978, shows a request was submitted to the National Personnel Records Center (NPRC) (Military Records) requesting a copy of the appellate review of general court-martial order number 41 dated 24 March 1977. There was no document on file at the NPRC. 7. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations. 8. By Army Regulation, AR 635-200, a determination reflecting a member’s military behavior and performance of duty during a specific period of service. The three characters are: honorable; under honorable conditions (general discharge); and under other than honorable conditions. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He accepted responsibility for his actions, and was remorseful with his application. Based upon the multiple offenses of a criminal nature which led to the applicant’s separation, 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. 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 Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 1-13a provides that 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. 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 provides that an under other than honorable conditions discharge is an administrative separation from service under conditions other than honorable. It may be issued for misconduct, security reasons, or for the good of the service. d. Paragraph 11-2 (DD Form 259A – Bad Conduct Discharge) provides that 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 and duly executed. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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- 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 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// ABCMR Record of Proceedings (cont) AR20170007419 4 1