ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20180001251 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Report of Separation from Active Duty) to show his service is characterized as honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (DVA) letter 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 believes his DD Form 214 contains a mistake. 3. The applicant enlisted in the Regular Army on 13 July 1973 for 4 years. He held military occupational specialty 11C (Infantry Indirect Fire Crewman). He completed advanced individual training at Fort Campbell, KY, and on 18 December 1973, he was assigned to Fort Campbell, KY as his first permanent duty station. 4. Headquarters 101st Airborne Division (Air Assault), Fort Campbell published Special Court-Martial Order Number 71, showing on 21 April 1977, he was convicted of being absent without leave (AWOL) from 1 to 4 February 1977 and of selling marijuana on 16 February 1977. The court sentenced him to confinement at hard labor for 2 months, a forfeiture of pay and a bad conduct discharge. 5. On 17 June 1977, 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. The applicant remained in confinement. 6. Special Court-Martial Order Number 197, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, on 16 November 1978, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed. 7. On 21 May 1979, the applicant was discharged under the provisions of chapter 11, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), as a result of court-martial with an under other than honorable conditions characterization of service. He completed 5 years, 7 months, and 3 days of active military service with 96 days of lost time (AWOL 3 days and 93 days were lost due to him being in confinement). His DD Form 214 shows he was, in pay grade E-1. He was retained 677 days for the convenience of the government from 14 July 1977 through 21 May 1979. No time lost subsequent to normal expiration term of service and was awarded or authorized the Parachutist Badge and Good Conduct Medal. 8. The applicant contends he believes his DD Form 214 contains a mistake. However, based on his service record he was court-martialed and convicted of being AWOL 3 days and of selling marijuana, which is a serious offense, as a result he was issued an under other than honorable conditions characterization of service and a Bad Conduct Discharge Certificate. 10. The applicant provides a letter that he received from the DVA, dated 20 December 2008, that shows he was granted a 40 percent service connected evaluation, as of 1 December 2008 for his period of service from 13 July 1973 to 21 May 1979. 11. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 12. 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 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 record, 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 635-200 set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. 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. 3. 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. 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. a. 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. b. 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) AR20180001251 2 1