ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20170014971 APPLICANT REQUESTS: reconsideration of upgrade for his dishonorable discharge to honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC79-00181 on 11 April 1979. 2. The applicant states that he is requesting to have his dishonorable discharge upgraded to honorable due to the fact that he served in the military. 3. A review of the applicant’s service records shows: a. He was inducted into the Army of the United States on 23 January 1968. b. He served in Germany 6 October 1968 to 23 January 1969. c. Special Court-Martial Order Number 207, dated 14 June 1968, he was convicted of one specification of without proper authority absent himself from his unit and one specification of without proper authority went from his appointed place of duty. His punishment included confinement at hard labor for 6 months, forfeiture of $40 per month for 6 months and reduction to the lowest enlisted grade of private (PVT)/E-1. The convening authority approved the sentence and will be duly executed but the execution of that portion thereof adjudging confinement at hard labor for 6 months is suspended for 6 months at which time, unless the suspension was sooner vacated, the suspended portion of the sentence will be remitted without further actions. Sentence was adjudged on 14 June 1968. d. General Court-Martial Order Number, 9 dated 25 July 1969, he was convicted of two specifications of theft and two specifications of unlawful entry with the intent to commit a criminal offense; larceny. His punishment included confinement at hard labor for 3 years, forfeiture of all pay and allowances, reduction to the lowest enlisted grade PVT/E-1, and dishonorably discharged from the service. The convening authority approved only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowanced, confinement at hard labor for 18 months and reduction to the lowest enlisted grade PVT/E-1. The sentence was adjudged on 12 May 1969. e. On 25 July 1969, the legal review concluded that in accordance with the pretrial agreement the sentence was regarded as sufficiently lenient to give due consideration to all extenuating and mitigating factors. No further reduction was recommended and suspension of the discharge was not recommended as the applicant’s records did not indicate him a prospect for rehabilitation. The order directing execution of the sentence must be withheld pending appellate review and applicant be confined until its completion. f. On 3 September 1969, the appellate review found the findings of guilty and sentence approved by proper authority correct in law and fact and having determined that should be approved, such findings of guilty and sentence are hereby affirmed. g. On 8 January 1970 the Clemency and Parole Board determined that restoration was not desired, denied clemency and/or parole and he was not eligible to transfer to the Federal system. h. On 16 January 1970, the U.S. Court of Military Appeals denied the applicant’s petition for grant of review. i. General Court-Martial Order Number 94, dated 22 January 1970, the sentence has been affirmed and will be duly executed. j. He was discharge from active duty on 9 February 1970 with a dishonorable characterization of service at the grade of PVT/E-1 with 411 lost days. His DD Form 214 shows that he completed 11 months and 2 days of active service. k. On 11 March 1970, the Secretary of the Army had announced that parole and clemency was disapproved from the 9 March 1970 board determination. 4. The applicant applied to the Army Board for Corrections of Military Records and on 11 April 1979, his application for an upgrade of his discharge was denied. 5. By regulation 635-200, provides an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 6. 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 offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 to amend the decision of the ABCMR set forth in Docket Number AC79-00181 on 11 April 1979. 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. Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 states an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 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 a member has served faithfully and performed to the best of his ability and had been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. c. Paragraph 1-9e (General Discharge) states 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 discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. d. Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any 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 the Military Department. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections 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, 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) AR20170014971 4 1