ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 July 2019 DOCKET NUMBER: AR20180002691 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. 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 he would like his under other than honorable conditions discharge upgraded. a. He feels when he was court-martialed, it was an act not associated with the military. He was stationed in Germany and was involved in an altercation when he was “called out of his name” by a group of Germans. He noted that racism was very outrageous in the 70’s and that led to his court-martial. b. He would like to be considered for an upgrade and Veteran’s benefits from the time of his discharge to date. He has paid the price since being court-martialed by serving a prison sentence. He further stated had he not been court-martialed, the military would have been his career. 3. A review of the applicant’s service record shows: a. Having had prior service in the U.S. Army Reserve, he enlisted in the Regular Army on 16 April 1974. b. He served in Germany from 23 August 1974 to 6 May 1976. c. He received nonjudicial punishment (NJP) on/for: * 9 July 1974, for being absent without leave (AWOL) on 8 July 1974; his punishment included forfeiture of $50.00 * 13 February 1975, for violating a lawful general regulation by being in an off limits establishment * 30 October 1975, for being drunk and disorderly; his punishment included forfeiture of $50.00, suspended for 90 days * 23 December 1975, for being disorderly in a public place; his punishment included reduction to private/E-2 d. He was convicted by a general court-martial on 26 April 1976 for one specification of assault with a means or force likely to produce grievous bodily harm. His sentence included reduction to the lowest enlisted grade, confinement for nine months, and a bad conduct discharge. e. On 2 August 1976, the convening authority approved the sentence and except for that part of the sentence extending to the bad conduct discharge, ordered the sentence executed. f. General Court-Martial Order Number 597, dated 20 June 1977, after Article 71 (c) was complied with and the sentence was affirmed, ordered the bad conduct discharge executed. g. He was discharged from active duty on 19 April 1977 with an under other than honorable conditions characterization of service. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) due to court-martial conviction. He was assigned an under other than honorable conditions characterization of service and issued a Bad Conduct Discharge Certificate. He completed 3 years and 23 days of active service with 153 days of lost time. It also shows he was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 4. By regulation, a Soldier 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. 5. 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 short term of honorable service completed prior to multiple offenses of a criminal nature, including some of involving 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 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, 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) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11 of the regulation 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 duty executed. 3. 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) AR20180002691 2 1