ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170015405 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge 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) 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 strongly feel that he should have been discharged with a general or under honorable conditions discharge, not a under other than honorable conditions discharge. Due to the fact, that he was young and being threatened so he felt he had no other alternative, but to be absent without leave (AWOL). 3. The applicant provides: a. A self-authored statement that stated he entered the Army in 1959 a few days after his 17th birthday. He went to Fort Ord for basic training (BT) and advance individual training (AlT). He did great there except he caught pneumonia and had to repeat AIT. He was recommended for airport training but because of the pneumonia he could not go. After completing AIT he was sent to Ladd Air Force Base, Fairbanks, Alaska. There he did well for a short period of time and then he had some homosexual guys giving him a hard time. He went to his supervisors and reported it and they told him to deal with it. The harassment continued so he went AWOL. He stayed AWOL for a few weeks and went back. The problems started all over again and every time it would started he went AWOL. He reported it to his superiors every time but it did no good. He was always told just to handle it. Finally the Army gave him a bad conduct discharge and sent him home. He was very young and very scared and did not know what to do. b. His DD Form 214 shows he served from 27 January 1959 to 10 June 1961. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 27 January 1959. b. Special Court Martial Order Number 8, dated 11 March 1960, charged the applicant with two specifications of AWOL from 4 February to 7 February 1960 and from 7 February to 19 February 1960. He was sentenced to be confined at hard labor for six months, forfeit $50.00 pay per month for six months and reduction to E-1, adjudge on 7 March 1960. c. On 11 March 1960, the sentence was approved and would be duly executed. d. Special Court Martial Order Number 12, dated 3 June 1960, effective 7 June 1960, the unexecuted portion of the approved sentence to confinement at hard labor for 6 months, adjudged 7 March 1960, as promulgated in Special Court Martial Order 8, dated 11 March 1960, was suspended for three months unless sooner vacated. e. On 1 December 1960, he was convicted by a general court martial of one specification of AWOL from 7 September to 3 October 1960, one specification of wrongfully and falsely alter by splitting a laminated plastic cover and inserting his recruit photograph with the intent to deceive, on a military dependent’s identification and privilege card, in words and figures (refer to General Court Martial Order Number 3, dated 20 February 1961), and one specification of escaping from a lawful confinement in the Base Guardhouse, Ladd Air Force Base, Alaska. The sentence adjudged on 1 December 1960. f. General Court Martial Order Number 3, dated 20 February 1961, approved the sentence and except for the bad conduct discharge, forfeiture of all pay and allowance, to be confined at hard labor for two years, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. g. The applicant underwent a medical examination on 25 March 1961, the examiner qualified him for general service. h. On 4 April 1961, the appellate rendered a decision that the Board of review found the findings of guilty determined on the basis of the entire record the sentence approved and affirmed. i. On 19 April 1961, the applicant requested parole to go home a start a new life. The Board did not recommend parole in view of his impulsive and irresponsible nature, and his difficulty with authorities. The recommendation was approved and he was denied parole 3 May 1961. j. General Court-Martial Order 326, dated 13 May 1961, affirmed the sentence and ordered the bad conduct discharge be executed. k. The applicant underwent another medical examination on 25 May 1961, the examiner diagnosed the applicant with emotional instability reaction, chronic, moderate; manifested by poorly controlled feelings of anger, guilt, and anxiety. The examiner recommended that the applicant showed a good deal of potential for wanting to help himself, and he may be able to adjust to the military service and become a desirable and useful Soldier. However, if' within a reasonable period of time such as 90 days, this was not accomplished and further difficulties arise similar in nature to those mentioned above, it is recommended that this individual be considered for separation from the military service due to unsuitability. There are no indications for disposition through medical channels. This applicant was considered responsible and capable of participating in any board actions that were pending. l. The Office of the Provost Marshal General disapproved Clemency and parole on 9 June 1961. m. The applicant was discharged on 10 June 1961, as a result of his general court- martial conviction in accordance with Army Regulation (AR) 635-204 (Dishonorable and Bad Conduct Discharge), para 1a, Separation Program Number (SPN) 292. His discharged was characterized as under other that honorable conditions. He completed 1 years, 3 months, and 3 days of creditable active military service this period. He had 405 days lost time from 4 February through 8 February 1960, 24 February through 15 June 1960, 7 September through 23 September 1960, 3 October 1960 through 10 June 1961. 5. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 6. By regulation (AR 635-204), 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. 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 relatively short term of honorable service completed prior to a pattern of misconduct, which included some of a serious 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 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 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. 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. 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) AR20170015405 4 1