ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20170011103


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States
* Summary for Benefits from the Department of Veterans Affairs
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge 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 he requested a federal court hearing for an upgrade of discharge status in the summer of 2011.  He met with the judge and was awarded an honorable discharge with a Purple Heart.  He was shot in South Vietnam and the TET offensive.  He lost the court letter that showed the judge’s decision.  His discharge status was supposed to be updated, but it does not show updated in the system.  

3.  The applicant provides along with his application a summary of benefits from the Department of Veterans Affairs as well as DD Form 215 that indicates his records have been corrected to reflect a Purple Heart.  On DD Form 293, item 8, the applicant indicates he has attached his medical records by his psychiatrist.  They are not attached.

4.  A review of the applicant’s service record shows:

	a.  He was inducted into the Regular Army on 14 August 1968. 

	b.  On 20 March 1969, he was convicted by special court-martial for one specification of absence without leave (AWOL) from 2 January 1969 to 5 February 1969.  The court sentenced him to be confined at hard labor for six months and to forfeit $73 per month for six months.  That portion adjudging confinement at hard labor for six months was suspended for six months.  

	c.  He served in Vietnam from 10 May 1969 to 9 May 1970.

	d.  On 29 June 1970, he was convicted by special court-martial for:

* one specification of possessing a concealed weapon
* one specification of theft
* one specification of assault
* one specification of unlawful entry
* one specification of absent without leave (AWOL)
* one specification of violating a lawful general order
* one specification of wrongful possession of marijuana

   e.  The court sentenced him to forfeit $30 per month for five months, to be confined at hard labor for five months, to be reduced to the grade of private (PVT)/E-1; and to be discharged from the Army with a bad conduct discharge.  That portion adjudging confinement at hard labor for six months was suspended for six months.  

	f.  On 10 September 1971, he accepted nonjudicial punishment under Article 15 for one specification of AWOL from 6 September 1971 to 8 September 1971.

	g.  On 26 August 1971, he was convicted by special court-martial for:

* one specification of assault against a commissioned officer
* one specification of disrespect towards a commissioned officer
* two specifications of violating a lawful order
* one specification of wrongfully communicating a threat

   h.  The court sentenced him to perform hard labor without confinement for 30 days, to forfeit $50 per month for three months, and to be reduced to PVT/E-1.  That portion adjudging hard labor without confine for 30 days was suspended for 60 days.  

	i.  On 25 January 1972, upon completion of appellant review, Special Court-Martial Order Number 6 affirmed the findings and the approved sentence of bad conduct discharge, confinement at hard labor for five months, forfeiture of $30 per month for five months, and reduction to the grade of E-1 which was adjudged on 29 June 1970, promulgated by Special Court-Martial Order Number 50, dated 29 October 1970 and ordered it duly executed.  
	j.  On 18 July 1972, he was discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was issued a DD Form 259A (Bad Conduct Discharge) and his given an under other than honorable characterization of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 3 months, and 28 days of active service with 577 days of lost time.  It also shows he was awarded or authorized National Defense Service Medal, Vietnam Service Medal, and Marksmen Marksmanship Qualification Badge with Rifle Bar (M-14 and M-16).

	k.  On 8 May 1985, the Military Review Boards Agency denied his request having determined that he was properly and equitably discharged. 

	l.  On 29 April 2016, he was issued a DD Form 215 reflecting the addition of the Purple Heart to his service record. 

6.  By regulation, an enlisted person will be given a bad conduct discharge pursuant only to an approved sentences of a general or special court-martial, after completion of appellate review and after such affirmed sentences has been ordered duly executed.  

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.

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 a pattern of misconduct, some misconduct involving violent behaviors towards others, 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.  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 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  The 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.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances.

	d.  Paragraph 11-2 (Bad Conduct Discharge) states an enlisted person will be given a bad conduct discharge pursuant only to an approved sentences of a general or special court-martial, after completion of appellate review and after such affirmed sentences has been ordered duly executed.  

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department.


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 the 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, 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 upgrade service characterization.

ABCMR Record of Proceedings (cont)	 AR20170011103


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