ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 August 2019

	DOCKET NUMBER:  AR20180002491


APPLICANT REQUESTS:  Reconsideration of his previous request for an upgrade of his bad conduct discharge (BCD).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* Self-authored letter and addendum dated 22 March 2018
* Letter from Senator X__, dated 1 July 2014
* Consumer complaint, dated 16 August 2017
* Record of Proceedings (ROP) and documents, dated 29 May 2014

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 AR20130016913 on 29 May 2014.

2.  The applicant states in effect, in 1975 he was disrespected, harassed, threatened, jailed, fined, and promised a BCD.  He was never questioned or investigated about cross burning in government property and telling a lie under oath.  To the best of his knowledge and belief his discharge was too harsh and prejudicial.  In 1975, he was faced with racial events that involved threats of death or serious injury or a threat to the physical integrity of himself and those that resided in or near his living quarters.  He responded with intense fear, helplessness, and horror because of cross burning at night that was to best of his knowledge and belief linked to cross burnings based on the history of the racial hate groups in the south.  In basic training, he was instructed to report these types of events to the chain of command which he did.  He was faced with reprisal after he reported these events to LT X__ and his career changed for the worse.  LT X__ began harassing him with extra duty, threats of destroying his military career and having him put out of the Army without probably cause, which he did.  Those overt abuses and discriminatory actions by his command impacted and provoked him and his ability to serve to the point that he went absent without leave (AWOL).  After days, he turned himself into the proper authorities.  He was court-martialed, judged, convicted, and sentenced without representation which constituted a violation of his due process rights under 1st, 4th, 5th, 6th, and the 14th amendments of the US Constitution.  He is requesting that the trial proceedings be reopened and reviewed for these prejudicial errors and that he be granted an equal and fail opportunity to exercise his due process rights noted above.  His overall quality of service was honorable, faithful, and good for the country.  He also believe that he has suffered long enough based on his excellent post-service record.  He is not the type of person to have intended to commit the offenses that he has been accused of to destroy his own military career and his character.  Especially his honor, integrity, good name, and his reputation.

3.  The applicant provides:

* Self-authored letter addressed above
* Letter from Senator X__, dated 1 July 2014 which states he was in touch with St. Louis Records Management Center and he cannot assist further with a discharge review as it is now a judicial matter
* Consumer complaint, dated 16 August 2017 to Officer of Arkansas Attorney General which shows he filed charges toward his chain of command that was ignored
* ROP and documents, dated 29 May 2014 which shows his previous request was considered and denied

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 16 July 1974.

	b.  On 2 May 1975, he accepted non-judicial punishment for failing to go at the time prescribed to his appointed place of duty.

	c.  On 20 December 1976, before a special court-martial, he was convicted of:

* one specification of being absent without leave (AWOL) from on or about 15 July to on or about 4 August 1976
* three specifications of willfully disobeying a commissioned officer
* one specification of insubordinate conduct
* one specification of striking a commissioned officer
* one specification of behaving disrespectfully toward an officer

	d.  The court sentenced him to a forfeiture of $249.00 pay for two months, confinement at hard labor for 2 months, and the issuance of a BCD.

	e.  On 4 March 1977, the convening authority approved the sentence.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.  The applicant was restored to duty and retained as a member of the command.

	f.  The applicant records are void of the U.S. Army Court of Military Review affirming the approved findings of guilty and the sentence in his court-martial.

	g.  On 21 February 1978, U.S. Army Court of Military Appeals denied the petition of the applicant for a grant of review.

	h.  Special Court-Martial Order (SCMO) Number 13 (corrected copy), issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 23 February 1978, shows the findings of guilty of Charge II and its three specifications have been set aside and those charges were dismissed, and only so much of the sentence as provides for confinement at hard labor for two months, forfeiture of $249.00 pay per month for two months, and a BCD, has been affirmed.  After the provisions of article 71(c) having been complied with, the sentence will be duly executed.

	i.  On 3 March 1978, he was discharged pursuant to his court-martial under the provisions of chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel).  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of chapter 11 of AR 635-200 as a result of court-martial, and he was given a under other than honorable conditions character of service.  He completed 3 years, 5 months, and 3 days of active service and he had 75 days of lost time and 33 days of excess leave.

	j.  On 28 July 1981, the Army Discharge Review Board after careful consideration of his military records and all other available evidence, has determined that he was properly discharged and denied his request.

	k.  On 8 August 2006, the ABCMR also considered his petition for an upgrade of his discharge.  He was notified by letter of the denial on 14 August 2006.

	l.  On 6 September 2013, ABCMR responded to correspondence from Senator X__ stating his application was received.

	m.  On 29 May 2014, the ABCMR reconsidered his petition for an upgrade of his discharge.  He was notified by letter of the denial on 2 June 2014.  A letter was also sent to Senator X__ notifying his of the Board’s decision and provided a copy.

5.  On 5 February 2019, ABCMR responded to Representative X___ stating the applicant’s request was received.

6.  By regulation, AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel.  Paragraph 11-2, 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.

7.  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.

8.  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 t a pattern of misconduct, which included violent behavior towards others, 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 AR20130016913 on 29 May 2014.
	 
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 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority 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)  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.  Paragraph 11-2 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.

2.  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)	 AR20180002491


5


1