ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 August 2019

	DOCKET NUMBER:  AR20170016477


APPLICANT REQUESTS:  an upgrade to his bad conduct discharge to an uncharacterized discharge  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed forces of the United States)

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, in effect he first got into a fight because he was called the “N” word and was picked on.  He was only 17 years old at the time and he knew nothing about racism in the military, but it ruined his life.  

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

	a.  He enlisted in the Regular Army on 1 February 1972.

	b.  He accepted nonjudicial punishment on/for:  

* 28 June 1972, for disorderly conduct
* 3 July 1972, for failure to go at the time prescribed to appointed place of duty
* 26 July 1972, for being absent without leave (AWOL) from 10 July 1972 to 11 July 1972 and 19 July 1972 to 20 July 1972
* 23 August 1972, for being AWOL from 3 August 1972 to 21 August 1972
* 10 November 1972, AWOL 8 November 1972 to 9 November 1972

     c.  His DA Form 20B (Insert Sheet to DA Form 20 – Record of Court Martial Conviction) shows he was charged with four specifications of AWOL, his punishment was confinement at hard labor for 4 months, forfeiture of $200 per month for 6 months and a bad conduct discharge, which was adjudged on 19 January 1973.
   d.  Special Court Martial Order Number 25, dated 15 February 1973, charged the applicant with four specifications of AWOL:  
   
* 5 September to 6 September 1972  
* 2 October to 10 October 1972
* 15 November 1972 to 5 December 1972
* 12 December 1972 to 22 December 1972
* he was sentenced to forfeiture of $200 pay per month for six months, confinement at hard labor for four months and to be discharged with a bad conduct discharge adjudged on 19 January 1973  

	e.  Special Court Martial Order Number 25, dated 15 February 1973, approved the sentence.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

	f.  On 22 March 1973, the appellate rendered a decision that states on consideration of the entire record, including consideration of the issue personally specified by the appellant, they held the findings of guilty and the sentence was approved for a bad conduct discharge, forfeiture of $200 pay per month for six months, and confinement at hard labor for four months by the convening authority correct in law and fact.

	g.  The Office of the Army and Air Force Clemency and Parole Board denied the applicant’s request for restoration of duty and clemency on 24 April 1973.  

	h.  Special Order Number 27, dated 14 June 1973, affirmed the sentence and ordered the bad conduct discharge be executed.

	i.  The applicant underwent a medical examination on 2 July 1973 and the examiner qualified him for separation.  

   j.  The applicant on 13 July 1973, signed a statement of medical condition that stated that there had been no changes in his medical condition.  

	k.  The applicant was discharged on 13 July 1973.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, Dishonorable and Bad Conduct Discharge, Separation Program Number (SPN) 292.  He was issued a DD Form 214 with an under conditions other than honorable characterization.  He completed 11 months and 9 days of creditable active military service.  He had 186 days lost time.  His DD Form 214 also shows he was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge, (M-16).  

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

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 635-200 currently in effect states an uncharacterized separation is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the government and Secretarial plenary authority.  

7.  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 short term of honorable service completed prior to multiple periods of AWOL, 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 635-200 (Personnel Separations - Enlisted Personnel), currently in effect describes the different types of characterization of service.  It states in pertinent part that an Uncharacterized Separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization Under Other Than Honorable Condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

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)	 AR20170016477


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