*ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 September 2019 DOCKET NUMBER: AR20170010600 APPLICANT REQUESTS: an upgrade to his under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 believes he was unjustly giving a court martial, even though he was attacked by his drill instructor and was never given a way out of the situation. He was also having girlfriend issues at the time, so he thought he was better off leaving the military. He was18 years old, scared, and had no help in rectifying the situation he was in. 3. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 10 January 1967. b. His DA Form 20B (Insert sheet to DA Form 20 – Record of Court Martial Conviction), shows he was charged with three specifications of being absent without leave (AWOL) from 24 January 1967 to 9 February 1967, 20 February 1967 to 8 March 1967, and 10 April 1967 to 17 April 1967. c. On 10 May 1967, he was convicted by a special court-martial for three specifications of AWOL. His sentence included forfeiture of $60.00 pay per month for five months, and confinement to hard labor for five months. d. On 6 June 1967, the convening authority approved the sentence and ordered it duly executed, but the execution of that portion thereof adjudging confinement at hard labor is suspended for five months, at which time unless the suspension is sooner vacated the suspended portion of the sentence will be remitted without further action. The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review. e. On 21 June 1968, Special Court Martial Order Number 378, dated 2 July 1968, approved the sentence. f. On 17 October 1968, he was convicted by a general court-martial for four specifications of AWOL and two specifications of escaping from confinement. The court sentenced him to be dishonorably discharged from the service, forfeiture of all pay and allowances, and to be confined at hard labor for five years. g. On 10 January 1969, the convening authority approved only so much of the sentence as provides for dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years is approved. The forfeitures shall apply to pay and allowances becoming due on and after the date of this action. The record of trail is forwarded to the Judge Advocate General of the Army for review by a board of review. Pending completion of appellate review, the accused will be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, and the confinement will be served therein, or elsewhere as competent authority may direct. h. On 12 March 1969, the Board of Review finds the findings of guilty correct in law and fact and determines, on the basis of the entire record, that they should be approved. Reassessing the approved sentence on the basis of the error considered and the entire record, the Board finds the same correct in law and fact appropriate. The findings of guilty and sentence are accordingly affirmed. i. General Court-Martial Order 792, dated 5 August 1969, affirmed the findings and ordered the sentence duly executed. j. On 7 June 1969, he was convicted by a general court martial of one specification of Mutiny (with intent to override lawful military authority, refuse in concert with 14 other persons,) to disobey the orders of an Officer. The court sentenced the applicant to be dishonorable discharged from the service, forfeit all pay and allowances, confinement at hard labor for one year, and to be reduced to the lowest enlisted grade. k. On 3 November 1969, the convening authority approved the sentence. The forfeitures shall apply to pay and allowances becoming due on and after the date of this action. The record of trial is forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of appellate review, the accused will be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas or elsewhere as competent authority may direct. l. On 30 June 1970, the Appellate reversed the courts charge, and supports the lesser included offense of willful disobedience of the lawful command of a superior commissioned officer. Accordingly, only so much of the findings of guilty of the charge and specification as finds that each appellant, at the time and place alleged, having received a lawful command from an officer, his superior commissioned officer, did, willfully disobey his order, in violation of Article 90, Code, Supra, are affirmed. The court affirmed a sentence of a bad conduct discharge, confinement at hard labor for seven months, and forfeiture of all pay and allowances. m. General Court-Martial Order 1047, dated 26 October 1970, remitted the bad conduct discharge, uncollected portion of the sentence to total forfeitures, and the unserved portion of the sentence to confinement on 5 February 1970, by order of the Secretary of the Army. n. The applicant on 13 July 1973, signed a statement of medical condition, which states there had been no changes in his medical condition. o. He was discharge on 13 October 1969. His DD Form 214 shows he was discharged as a result of his general court-martial conviction in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-lb, SPN 292, with an under honorable conditions discharge. He completed 1 month and 8 days of total creditable active military service with 238 days of lost time. His DD Form 214 does not show he was awarded or authorized any awards. 4. 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. 5. By law and Army Regulation 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 6. By regulation AR 635-200, paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 7. The Board should 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. He previously received a character of service upgrade to under honorable conditions (General). The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. a. Paragraph 11-1b, states enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court martial imposing a bad conduct discharge. b. 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). c. 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 general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. 3. AR 635-5-1 (Personnel Separations-Separation Program Designators), states that the separation program number (SPN) code is used in statistical accounting to represent the reason for separation. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010600 6 1