ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20170008159 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Military Records * DA Form 2627-1 (Record of Proceedings Under Article 15) * Separation Packet - Summary Court Martial Order Number 1243 * DD Form 214 (Report of Separation from Active Duty), dated 1 October 1974 * College Certificates (8) * Army Board for Correction of Military Records (ABCMR) Letter * Department of Veterans Affairs (VA) Letter, dated 21 December 2010 * National Personnel Records Center Letters (NPRC) (2) * Social Security Administration Statement of Earnings (1967-2008) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070007613 on 29 November 2007. 2. The applicant states: a. He should not have been DFR (dropped form the rolls) on 29 July 1971; he was doing what he was instructed. He is from the Virgin Islands and upon returning from duty in Vietnam, he brought his family to his new duty station and tried to get his family situated in New York in anticipation of his discharge from the military. His monthly pay went directly to his bank due to some excess leave time taken prior to going to Vietnam the Department of Finance and Accounting deducted monies due to the government from his pay. b. Unknown to him at the time in March 1971 before he was able to correct it, two or more checks written by him for food at the post exchange at Fort Hamilton. This presented a problem to him as he was treated as though he had wrongfully an unlawfully made an uttered and did not have sufficient funds in or credit with the bank for payment of said checks. He was given an Article 15 punishment for this offense on 1 June 1971. c. He started “Project Transition” in May 1971 and it was to last for 90 days, to the best of his knowledge. Servicemen anticipating discharge within 6 months could find an employer that would train for a job or career upon leaving the service. He negotiated with Control Data Company to do his “Project Transition”. His work site was located at the American Airlines facility, (Sabre) 41st. Due to his background and training in computers 34D ADPS (Automatic Data Processing Systems) repair and computer instructor he was accepted. He started in May 1971 reporting to X___ X__ manager. d. The company that provided the opportunity (Control Data) paid for transportation from his home base at Fort Monmouth, NJ to the job site at American Airlines facility in his case it was $30.00 per week. He called into his unit at the end of every week and physically reported to his home base military unit Fort Monmouth at the end of every month. He diligently followed these procedures in May, June, and July of 1971. When he returned to Fort Monmouth, NJ on 30 July 1971, he learned he was DFR. He should not have been DFR this was wrong and in error. At this time he had less than 60 days left on his enlistment, until discharge which was scheduled for 22 September 1971. 3. The applicant provides: a. DA Form 20 (Enlisted Qualification Record) which he highlights he was dropped from rolls for desertion on 29 July 1971 which he feels he was doing as instructed. b. A copy of his summary court martial conviction, dated 28 December 1971. c. College certificates: * Bachelor of Science Degree (Strayer University) - Computer Networking, December 2001 * Post Baccalaureate (Capitol College) - Client Server & Wireless Devices, June 2002 Component Technologies and Online Collaboration, May 2003 Information & Telecommunications Systems Management, May 2005 * Master of Science Degree (Capitol College) – Information Architecture, May 2003 * Master of Business Administration (University of Liverpool) – 13 December 2005 * International Trade Graduate Course - (University of Maryland University College), 30 December 2006 * Entrepreneurship Graduate Course – (University of South Florida), 4 May 2012 d. Letter from the ABCMR where he was seeking a discharge upgrade. The ABCMR, after considering his case on 29 November 2007, denied his request. e. VA letter, dated 21 December 2010, granted him entitlements to VA benefits despite his character of discharge from the service under other than honorable conditions for the periods of 22 September 1969 to 1 October 1974. It also informed him that they had determined he had honest, faithful, and meritorious service from 22 September 1966 to 21 September 1969, and eligibility for VA purposes was established for that period under 38 U.S. Code 101(18) and Public Law 95-126; therefore he qualified for the benefits he applied for as well as, other gratuitous VA benefits based on that period of service. f. NPRC letter, dated 24 May 2011, and 12 December 2016, which provided him with copies of his essential military documents. g. Social Security Administration statements of earnings which he highlights his military service payments for the period of 1970 and 1971 for first through fourth quarter. 4. A review of the applicant’s service records shows: a. He enlisted on 22 September 1966 for a period of 3 years. He served in Germany from 6 February 1967 to 18 October 1968. While in Germany, he was discharged on 21 September 1967 for immediate reenlistment. b. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged honorably for the convenience of the government under provisions of AR 635-200 (Personnel Separations - Enlisted Personnel). He was authorized or awarded the National Defense Service Medal. c. He reenlisted on 22 September 1967 for a period of 4 years. He served in Germany from and in Vietnam from 13 January 1970 to 5 December 1970. His duty status shows him DFR for desertion on 29 July 1971 and on 19 January 1972. d. On 1 June 1971, he accepted nonjudicial punishment (NJP) for unlawfully making and uttering checks on 16 and 24 March 1971, then knowing that he did not have sufficient funds in the bank. e. On 2 August 1971, he accepted NJP for unlawfully making and uttering checks on 1-2 March 1971, 5-6 March 1971, 9 and 11 March 1971, then knowing that he did not have sufficient funds in the bank. f. On 10 December 1971, he was returned to military control form an AWOL status and having been DFR he was present for duty. g. On 28 December 1971, he was convicted by a summary court-martial of being AWOL from 1 July 1971 to 29 November 1971. His sentence consisted of a forfeiture of $100.00 pay for one month, and restrictions (suspended for 60 days); reduction to specialist/E-4. On 18 January 1972, the suspension not subsequently modified was remitted. h. His DA Form 3545 (Deserter Wanted by the Armed Forces), dated 20 January 1972, reflects he was dropped from the rolls on 19 January 1972, under provisions of AR 630-10 paragraph 3-4g (Personnel Absences –Absence Without Leave and Desertion). On 17 August 1973, he was apprehended by the Federal Bureau of Investigation at St. Thomas, Virgin Islands. i. On 4 September 1973, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him. Following consultation with legal counsel, the applicant requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he acknowledged: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of an under other than honorable conditions discharge and be furnished with an Undesirable Discharge Certificate * he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf j. On 12 September 1973, the immediate commander recommended disapproval of the applicant’s request for discharge for the good of the service under provisions of chapter 10, AR 635-200 and recommended a trial by general court-martial for AWOL from 18 January 1972 to 17 August 1973. On 13 September 1973, his chain of command recommended disapproval of the same. k. On 17 September 1973, consistent with the chain of command recommendations, the separation authority disapproved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service. l. He made a statement explaining his situation at that particular time during his pre-trial confinement pending court-martial for desertion; he plead innocent. He stated the following: * his readjusted expiration of term of service (ETS) date was 18 September 1973 and he was dropped with 30 days remaining of ETS * he submitted a chapter 10 so that he could get out of the Army and return home to take care and support his family; he was their only support his wife was 7 months pregnant and had no income; he has two other children 4 and 5 years old at the time * he was not receiving any sort of pay or allowances from the Army and his family was not being supported there is no welfare facilities in the Virgin Islands and they had no health insurance * he made quite a lot of contributions to the Army; he thought he deserved better consideration he served a total of 59 months of honorable service and he had served in Vietnam * he received an Army Commendation Medal and was recommended for a Bronze Star he also had several letters of appreciation in his career m. On 11 October 1973, he was convicted by a general court-martial for one specification of AWOL from 18 January 1972 to 17 August 1973. The court sentenced him to be discharged from the service with a bad conduct discharge; reduction to private/E-1, and forfeiture of all pay and allowances. n. On 19 October 1973, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. Pending completion of appellate review the applicant would continue in excess leave status at College of the Virgin Islands. o. On 26 June 1974, The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence; he was advised of his rights to appeal. p. On 9 September 1974, General Court-Martial Order Number 126, issued by Headquarters U.S. Army School Training Center and Fort Gordon shows the sentence was affirmed and the sentence would be executed. q. The applicant was discharged on 1 October 1974. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged with a bad conduct discharge under the provisions of chapter 11, AR 635-200 (Personnel Separations - Enlisted Personnel). It also shows he completed 5 years, 10 months and 7 days of active service; 1 year, 11 months, and 19 days of foreign service; with total lost time 783 days; 83 days lost under U.S. Code 972 from 1 July 1971 to 21 September 1971; and 700 days lost subsequent to normal expiration time (ETS) of service 22 September 1971 to 28 November 1971; 18 January 1972 to 10 October 1973. It also shows he was awarded or authorized: * National Defense Service Medal * Marksman Marksmanship Qualification Badge with Rifle Bar * Vietnam Service Medal with bronze service star * Vietnam Campaign Medal * 2 overseas service bars * Army Commendation Medal * Army Good Conduct Medal r. He petitioned to the ABCMR seeking a discharge upgrade. The ABCMR, after considering his case on 29 November 2007, denied his request. 5. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service. The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214. 6. 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. 7. 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. 8. 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 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 honorable service completed prior to a pattern of misconduct, which included a lengthy AWOL offense, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the requirements and procedures for administrative discharge 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. 2. 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 on the basis of 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. ABCMR Record of Proceedings (cont) AR20170008159 8 1