ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170007562 APPLICANT REQUESTS: An upgrade of his bad conduct discharge to honorable. 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 the time he was in the Army (the mid 1970's) racial prejudice was rampant. The incident that caused his charges was done in a prejudice manner. At the time, he thought he wanted to get out of the Army and the judge advocate general (JAG) officer representing him encouraged him to take the bad conduct discharge. He would be out of the service and be able to help his ailing grandmother at the time. He was wrongly accused of stealing a sergeant’s musical equipment and he did not fight the accusation, partially due to wrong advice from JAG to a young, inexperienced Soldier to take the rap for the crime. This decision has haunted him for the rest of his life. He wants to turn his life around and need that part of his life to be corrected. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 24 July 1975. b. On 2 March 1976, DD Form 458 (Charge Sheet) shows he was placed in pre-trial confinement at Fort Gordon, GA. He was charged with: * specification one wrongfully and unlawfully endeavor to influence the testimony of X X. X as a witness before a court-martial by wrongfully attempting to have him alter his testimony concerning the larceny of a stereo at such trial * * specification two wrongfully communicate to another a threat to do bodily harm to X X. X by saying “I am going to get them all” and pointing his finger at X X. X * specification three wrongfully communicate to another a threat to do bodily harm to X X. X by saying “I am going to get them all” and pointing his finger at X X. X * specification four wrongfully communicate to another a threat to do bodily harm to X X. X by saying “I am going to get them all” and pointing his finger at X X. X c. On 21 April 1976, he was convicted by a general court-martial of the charge (robbery) and its one specification of stealing one Prominent 8-track stereo and two electronic speakers, of a value in excess of $100.00, property of PV2 X X. X . Additionally the one specification of unlawfully enter room 3** building 21***, the room of PV2 X X. X . The court sentenced him to be discharged with a bad conduct discharge, confinement at hard labor for one year, reduction to E-1, and forfeiture of all pay and allowances. d. On 8 July 1976, only so much of the sentence as provides for bad conduct discharge, confinement at hard labor for ten months, forfeiture of all pay and allowances and reduction to the lowest enlisted grade was approved by the convening authority. e. On 28 September 1976, U.S. Army Court of Military Review having found the finding of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such finding of guilty and sentence are hereby affirmed. f. On 18 October 1976, the applicant petitioned the Court of Military Appeals and he was notified of the decision of the Court of Military Review. g. On 12 January 1977, General Court-Martial Order Number 29, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge will be duly executed. h. On 24 January 1977, the applicant was discharged under conditions other than honorable in the rank of PVT/E-1. He was issued a bad conduct discharge certificate. He completed 1 year, 10 months, and 10 days of active service. He had 85 days of lost time. 4. By regulation, AR 635-200 paragraph 11-2, an enlisted person 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. 1. 5. 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. 6. 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, 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 a pattern of misconduct which involved criminal and dangerous behavior which endangers others, 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. Army Regulation (AR) 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 11-2 states an enlisted person 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. 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 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 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.