ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20170014899 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to Honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * 5 letters of support 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 was charged with a crime that he was not guilty of. He feels he was coerced by CID to plead guilty and no charges would be added to his case. He was interrogated without counsel. He also states he was told he would be sent home that afternoon. He was a young impressionable Soldier who achieved rank of SGT/ E5 at a very fast rate. There was no evidence against him and the person who committed the crime was sent to jail. 3. The applicant provides: a. A self-authored statement requesting a review of the circumstances of his military service be considered. He was drafted into the United States Army and sent to Guam for 18 months and then he voluntarily enlisted for a 6 year term. He spent 12 months in Vietnam where he contracted malaria. Over the years he has reflected on the circumstances attending his military service and has suffered a great deal of internal shame for being dishonorably discharged for a crime he did not commit. b. A letter of support from X___which stating he has known the applicant for about fifty years, both as a civilian and as an active soldier. He couldn’t find anyone prouder to serve his country than the applicant. His respect for military personnel still remains. c. A letter of support from X___, which states the applicant is a honorable citizen, a fellow 3rd Degree, Night of Columbus and also a volunteer fireman which he attained the rank of Fire Chief. He also served as City Councilman. d. A letter of support from X___, which states he has known the applicant for about fifty years both as a civilian and active duty soldier. He states the applicant was proud to serve his country and his esprit de corps was always intact, he wore his uniform with pride respect and honor. e. A letter of support from X___, which states that he has known the applicant for over forty years and he is very honest, has good character, reliable, loyal and a very productive citizen. f. A letter from X___, which states he has known the applicant for over forty years. He is very reliable, honest and a caring citizen. 4. A review of the applicant’s service record shows: a. He enlisted in the Army National Guard on 15 March 1965. After serving in the National Guard he did an immediate reenlistment in the Regular Army on 23 August 1968. b. He served in Guam from 2 June 1967 to 1 December 1968 and in Vietnam from 7 November 1969 to 9 November 1970. c. On 15 May 1972 he was convicted by a general court-martial of: * One specification of stealing a GE, AM/FM radio, with a value of $102.00 from a Sergeant. * One specification of unlawfully entering the room of the Sergeant. d. The court sentenced him to a bad conduct discharge; to forfeit all pay and allowances; to be confined at hard labor for two years. e. General Court-Martial Order Number 8, dated 15 May 1972 approved the sentence and except for that part of the sentence the forfeitures shall apply to pay and allowances becoming due on and after the date of this action. f. General Court-Martial Order Number 10, dated 16 May 1972 promulgated in General Court-Martial Order Number 8, deferred until such time as the sentence is ordered into execution, unless the deferment of confinement is sooner rescinded. The application of the remaining forfeitures is deferred until the sentence is ordered into execution, unless the deferment of confinement is sooner rescinded. g. General Court-Martial Order Number 27, dated 19 December 1972, finally affirmed the sentence to a bad conduct discharge, to forfeit all pay and allowances and to be confined at hard labor for nine months has been affirmed pursuant to Article 66. The provisions of Article 71c had been complied with, only so much of the sentences as provides for to be discharged from the service with a bad conduct discharge will be duly executed. 5. He was discharged on 16 March 1973. His DD form 214 shows he completed 6 years, 3 months and 10 days of net active service this period with lost times from 15 May 1972 to 18 May 1972. It also shows in: * item 5b (Pay Grade) E-1 * item 6b (Effective Date of Pay Grade), 15 May 1972 * item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): Vietnam Service Medal with 3 Bronze Service Stars, Republic of Vietnam Campaign Medal, Good Conduct Medal, Expert Marksmanship with Rifle Bar * item 13a (Character of Service), Under conditions other than honorable * item 11c (Separation Authority), Chapter 11, Army Regulation 635-200 6. By regulation a member 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 be 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 review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions and letters of support 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. Based upon the misconduct and the time that has passed since his separation, the Board agreed an Under Honorable Conditions (General) character of service is warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 16 March 1973 showing his character of service as under honorable conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to granting relief for an Honorable character of service. 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 Separations), in effect at the time, provides 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. Paragraph 11-2 (Bad Conduct Discharge Certificate) 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. 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) AR20170014899 4 1