ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170011750


APPLICANT REQUESTS: 

* An upgrade of his under other than honorable conditions discharge be upgraded to honorable
* Personal appearance before the Board

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)
* Letter from the Veterans Administration (VA) denying benefits, dated 27 December 1979

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 (ABCMR) 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 came back from Vietnam to his father being sick in the hospital.  He made a decision to talk to the doctor about his health.  He lost his father after returning from Vietnam.

3.  The applicant provides:

* His DD Form 214 which shows he was discharged under the provisions (UP) of paragraph 11-1b, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) on 30 June 1972 under conditions other than honorable
* Letter from the VA denying benefits, dated 27 December 1979


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

	a.  He was inducted into the Army of the United States on 9 April 1968.  His records also show he was discharged three days later on 11 April 1968 for immediate enlistment in the Regular Army (RA) on 12 April 1968.  He was issued a DD Form 214 that captured his active service.

	b.  He enlisted in the RA on 12 April 1968.  He served in Vietnam as follows: 

* 20 December 1968 to 15 October 1969
* 29 June 1970 to around 31 January 1971 

	c.  General Court-Martial Order Number 7, dated 3 March 1971, shows on 19 November 1970 he was arraigned and tried before a general court-martial for the charges below:

* three specifications of failing go at the time prescribed to his appointed place of duty 
* one specification of unlawfully having in his possession 5 tablets, more or less labelled binoctal, containing a mixture of amobarbital and secobarbital, barbituates and entering an off-limits area
* one specification of entering an off limits area 
* one specification of willfully disobeying a lawful order 
* one specification of assaulting a superior noncommissioned officer by striking him on the head and body with his fists
* one specification of wrongfully possessing marijuana
* one specification of unlawfully carrying a concealed weapon, a hunting knife with a 4 ½ inch long blade

	c.  The court sentenced him to confinement at hard labor for 2 years, forfeiture of all pay and allowances, and a bad conduct discharge.

	d.  On 3 March 1971, the convening authority approved the sentence, and except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

	e.  General Court-Martial Order Number 1563, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 23 December 1971 states having served the period of confinement adjudged on 19 November 1970, said period of confinement having expired pursuant to remission of the unserved portion of the sentence to confinement by order of the Secretary of the Army, the applicant is restored to duty pending completion of appellate review.

	f.  On 22 May 1972, notice of appeal denying the petition for a grant was sent to the applicant through the Commandant, U.S. Disciplinary Barracks, Fort Leavenworth, KS.
	g.  General Court-Martial Order Number 604, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 25 May 1972 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge , as thus modified, shall be duly executed.

	h.  The applicant was discharged on 30 June 1972 in the rank/grade of private/E-1.  His DD Form 214 shows he was discharged with an under conditions other than honorable character of service UP of paragraph 11-1b of AR 635-200, and issued a Bad Conduct Discharge Certificate.  He completed 2 years, 11 months, and 17 days of active service.  Time lost was 255 days subsequent to normal expiration term of service.  He was awarded the National Defense Service Medal, Expert Qualification Badge (M-14 Rifle), Expert Qualification Badge (M-16), Overseas Bar, Vietnam Service Medal, and Vietnam Campaign Medal with 60 Device.

5.  On 28 August 1980, a memo for the Adjutant General stated, the ABCMR determined that insufficient evidence has been presented to indicate probable material error or injustice, and the application is denied.

6.  By regulation, AR 15-185 (ABCMR) applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

7.  By regulation, AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel.  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.

8.  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.

9.  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 there is insufficient evidence to grant relief.  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 the misconduct involving dangerous, violent behaviors 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

3.  AR 635-200 (Personnel Separations – Enlisted Personnel) 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)  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

	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.

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 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.

ABCMR Record of Proceedings (cont)	 AR20170011750


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