ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170010549 APPLICANT REQUESTS: in effect, an upgrade of his dishonorable 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 he had a couple of charges for disorderly conduct and simple assault. He served his country and would like his dishonorable discharge upgraded to honorable. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 December 1974. b. On 15 March 1976, he was convicted by a special court-martial for one specification of wrongful possession of a controlled substance with the intent to distribute, one specification of wrongfully selling a controlled substance, one specification of assault, one specification of disrespect towards a noncommissioned officer, and one specification of leaving his post before being relieved. c. His sentence included reduction to the lowest enlisted grade, confinement for two months, forfeiture of $240.00 per month for two months, and to be discharged from the service with a bad conduct discharge. d. On 7 May 1976, he received nonjudicial punishment under Article 15 for failing to go to his appointed place of duty. He received nonjudicial punishment again on 6 August 1976 for six specifications of failure to be at his appointed place of duty. e. Special Court-Martial Order Number 63, dated 27 August 1976, after Article 71(c) was complied with and the sentence was affirmed, ordered the bad conduct discharge executed. f. He was absent without leave (AWOL) several times preceding and following the execution of the sentence: * from 23 July 1976 to 26 July 1976 * from 5 August 1976 to 26 August 1976 * from 14 September 1976 to 22 September 1976 * from 27 September 1976 to 12 October 1976 * from 18 October 1976 to 24 October 1976 g. On 19 November 1976, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) due to court-martial conviction. He was assigned an under other than honorable conditions characterization of service and issued a Bad Conduct Discharge Certificate. He completed 1 year and 9 months of active service with 58 days of lost time. 4. By regulation, 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 duty executed. 5. 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. Based upon the pattern of misconduct, some involving violence towards 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. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (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. c. Chapter 11 of the regulation 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 duty 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010549 3 1