ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170007880 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character reference from X____ * Character reference from X____ FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150000106 on 4 August 2015. 2. The applicant states he served 1 year, 2 months and 28 days of honorable service and it was unjust not to take into account his good time. He is requesting the Board to change the character of his discharge to honorable, with no conditions. He states there were no previous court martial convictions and the FBI report is negative. 3. The applicant provides: a. Reference letter from Mr. X___ who says he met the applicant three years ago while working at the Memphis Auto Auction. While listening to him for about six months he realized that he was one of the most honest and caring persons you could ever be around. He is a man of great integrity and great family morals and values. b. Reference letter from Ms. X___ who says she has known the applicant for over 20 years and has watch with pride his dedication and comforting presence at the VA (Department of Veterans Affairs) Medical Center, in Memphis Tennessee for his fellow veterans. 4. Review of the applicant’s service records show: 1. a. The applicant was inducted into the Army of the United States on 16 August 1962. He was honorably discharged from active duty on 25 October 1962 for the purpose of enlistment in the Regular Army. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that credited him with 2 months and 10 days of active service. b. He enlisted in the Regular Army on 26 October 1962 and he held military occupational specialty 111.07 (Light Weapons Infantryman). He was assigned to Fort Bragg, NC. c. On 17 June 1963, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order not to have in his possession a switchblade knife. d. On 17 December 1963, he was convicted by a general court-martial of stealing 780 pounds of sugar, property of the United States. The court sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years, and a reduction to the rank/grade of private/E-1 e. On 15 January 1964, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a reduction to the rank/grade of private/E-1 , and except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. f. On 17 June 1964, the Office of The Judge Advocate General of the Army, U.S. Army Board of Review affirmed the approved findings of guilty and the sentence. g. On 10 September 1964, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. h. Headquarters, 101st Airborne Division, Fort Campbell, KY, General Court-Martial Order Number 95, dated 12 October 1964, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant modified discharge sentence executed (confinement at hard labor changed to 9 months had been served and the dishonorable discharge was changed to undesirable discharge). I The applicant was discharged from the Army on 15 October 1964. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in accordance with Army Regulation 635-204 (Personnel Separations) as a result of court-martial with an under other than honorable conditions discharge. He was issued an Undesirable Discharge Certificate. His DD Form 214 further shows he completed a total of 1 year, 5 months, and 7 days of creditable active military service. He had 263 days of lost time. j. On 31 July 1980, the Army Discharge Review Board reviewed his discharge and changed it to an under honorable conditions (general) discharge. As a result, his DD Form 214 was voided and he was issued a new DD Form 214. Upgrading his discharge effective 16 June 1980 to general, under honorable conditions. 5. By regulation, a member who has committed an offense or offenses the punishment for which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service. 6. Also by regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. 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 DOD guidance 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 not warranted. Based upon the short term of service completed prior to multiple UCMJ violations over extended periods of service, the Board concluded the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/13/2019 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. Army Regulation (AR) 635-200 governs 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. c. Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. d. 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. e. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide 1. cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 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.