ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20170009371 APPLICANT REQUESTS: an upgrade to his dishonorable discharge to general, under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * 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 that his discharge was unjust and that he was wrongly convicted. He also needs help to get housing. 3. The applicant provides a copy of his DD Form 214 which shows item 9c (Authority and Reason) as AR 635-200 (Personnel Separations – Enlisted Personnel) Chapter 11, paragraph 1 (dishonorable discharge). Item 9e (Character of Service) shows a dishonorable discharge. 4. A review of the applicant’s active duty record show the following: a. He enlisted in the Regular Army (RA) on 13 July 1977. b. DA 4187 (Personnel Action) dated 14 November 1977, shows that the applicant was confined to military authority on 13 November 1977 awaiting disposition of murder case. c. DA Form 4430 (Report of Result of Trial), dated 14 February 1978, a. shows that the applicant was convicted of pre-meditated murder by E and S. He was sentenced to confinement at hard labor for 25 years, forfeiture of all pay and allowance, and a dishonorable discharge. The sentence was adjudged on 14 February 1978. d. Orders 35-62, dated 21 February 1978, shows that the applicant was assigned to the correctional holding detachment at Fort Leavenworth Kansas. e. General Court-Martial (CM) Order 13, dated 11 May 1978, shows that applicant was convicted of one specification of attempted murder by stabbing Ri_y To_t, a military member and member of the applicants unit, with a knife. One specification of the charge guilty, except the words “with premeditation” substituting therefor the words “without premeditation” and of the excepted words “Not guilty” of the substituted words “Guilty” of the charge “Guilty”. The convening authority approved the sentences with forfeiture of pay and allowance with the record of trial forwarded to the Judge Advocate General (JAG) of the Army for review by a Court of Military Review. Pending completion of the appellate review the applicant will be confined in the United States Disciplinary Barracks. f. On 15 September 1978, the United States (U.S) Army of Military Review states that applicant states that the military judge erred to his prejudice by inadequately instructing the court on the defense of accident. The applicant argues that the judge should have specified the significant evidentiary factors bearing on that defense and should have instructed on self-defense as it related to the lawfulness of the applicant’s acts. The review board disagreed and states that the military judge gave the correct instruction on self-defense in the instance in which that special defense was appropriate and that the findings of guilty and the sentence are affirmed. g. On 28 September 1978, the applicant acknowledge receipt of the U.S. Army Military Review decision with a right to petition the court of Military appeals for a grant of review with respect to any matter of law, within 30 days. The applicant filed an appeal with the request that the JAG designate a lawyer to represent him. h. On 26 December 1978, the U.S Court of Military Appeals denied the applicant’s petition for grant of review in his case. i. Court-Martial Order 6, dated 3 January 1979, shows the applicant’s sentence to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 25 years adjudged 14 February 1978 and affirmed on 11 May 1978. j. Orders 152-16, dated 7 August 1979, shows the applicant was discharged from the RA with an effective date of 13 August 1979 with a dishonorable discharge. k. He was discharged from active duty on 13 August 1979. His DD Form 214 shows that he was discharged under the provisions of Item 9c (Authority and Reason) a. AR 635-200, chapter 11-1 with Item 9e (Character of Service) as dishonorable. He completed 4 months of active duty service with 639 days of lost time. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By Regulation, AR 635-200, paragraph 11-1 a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 7. By regulation, Army Regulation (AR) 635-5 (Separation Documents) * Item 9c (Authority and Reason) Enter statutory and/or regulatory authority for separation and the SPD * Item 9e (Character of Service) Enter in all capital letters; Authorized entries are Honorable, Under Honorable Conditions, Under Other Than Honorable Condition’s, Dishonorable, To Be Determined, Not Applicable 8. In reaching its determination, the Board can consider the applicants 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 for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, the serious, criminal nature of the misconduct which led to the applicant’s separation, and whether to apply clemency. The Board found no in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that the characterization of service received at the time of separation was not in error or unjust. 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. 8/19/2019 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states 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 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 that 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. c. Chapter 11-1 of this regulation stats that a member will be given a dishonorable discharge pursuant only to an approved sentence of a general 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 (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 1. might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.