ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20180002756 APPLICANT REQUESTS: an upgrade of his general discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * DD Form 256A (Honorable Discharge Certificate) 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, a. After exceeding his 2-year obligation and serving his sentence as a result of his court-martial, he returned from active duty service in Vietnam on 6 September 1970. Based on pending legal appeals to his court-martial, he was allowed to attend college. He was told that he would be issued an administrative discharge at a later date. When he received his DD Form 214 in the mail, he did not realize that an under honorable conditions discharge was anything other than an honorable discharge. b. In February 1975, he received his honorable discharge certificate; therefore, he assumed he had received an honorable discharge. It was not until he applied for a Veterans Administration ID card that he was told that his discharge was only an administrative one. He was not issued an updated DD Form 214 when he received the honorable discharge certificate. His discharge was not a result of his court-martial, but rather the completion of his active duty requirements in the Army. 3. The applicant provides a copy of his DD Form 256A (Honorable Discharge Certificate), which reflects he was honorably discharged from the U.S. Army on 11 February 1975. 4. A review of the applicant's service record shows: a. He enlisted in the Army on 13 March 1967. b. He was honorably discharged on 4 August 1968, under the provisions of Army Regulation 635-200, Separation Program Number (SPN) 214, to accept recall to active duty as an Army Reserve officer. c. On 5 August 1968, he was appointed a Reserve commissioned officer of the Army, with an appointment of an indefinite term. d. On 3 February 1970, he was convicted by a general court-martial of * Charge I: conspiracy to murder with premeditation * Charge II: with premeditation, murdered X___ X___ X___, by means of shooting him with a rifle * Charge IV: guilty except the words "identification papers to be taken from X___ X___ X___, a Vietnamese National, and said papers to be destroyed, discussed the execution of said X___ X___ X___ in the presence of the wife of said X___ X___ X___, and caused" e. Upon reconsideration of the findings, the court announced the following findings: * As to the specification of Charge I, guilty except the words, "murder with premeditation", substituting in lieu thereof the words, "involuntary manslaughter of". Of the excepted "words not guilty, of the substituted words guilty. Of Charge I guilty. * As to the specification of Charge II, guilty except for the words, "with premeditation murder X___ X___ X___ by means of shooting him with a rifle", substituting in lieu thereof the "words, "while perpetrating an offense directly affecting the person of X___ X___ X___ to wit aggravated assault, unlawfully kill X___ X___ X___ by shooting him with a rifle". Of the excepted words not guilty, of the substituted words guilty. Of the Charge not guilty, but guilty of a violation of Article 119. f. The applicant was sentenced to confinement for six months and forfeiture of $250.00 a month for six months. The sentence was adjudged on 31 March 1970. g. The applicant was relieved from active duty on 20 October 1970. His DD Form 214 shows he was relieved in the rank/grade of first lieutenant/O-2 as a result of Title 10 U.S.C. 681(a), Separation Program Designator (SPD) 644, voluntary and involuntary relief from active duty (REFRAD), with a characterization of under honorable conditions. He completed 3 years, 8 months, and 8 days of total active military service h. On 2 December 1970, the convening authority approved the sentence and ordered the sentence be duly executed. The record of trial was forwarded to the Judge Advocate General of the Army for action pursuant to Article 69, Uniform Code of Military Justice. 5. Title 10, U.S.C., section 12313, renumbered section 681(a) and (b), (Reserve release from active duty). Under this provision, the Secretary concerned may at any time release a Reserve under his jurisdiction from active duty. In time of war or of national emergency declared by Congress or the President after January 1, 1953, a member of a Reserve component may be released from active duty (other than for training) only if— (1) a board of officers convened at his request by an authority designated by the Secretary concerned recommends the release and the recommendation is approved; (2) the member does not request that a board be convened; or (3) his release is otherwise authorized by law. 6. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the seriousness and dangerous nature of the misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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 (AR) 635-100 (Personnel Separations - Officer Personnel), Section XIX (Relief from Active Duty Pending Appellate Review), paragraph 3-71b, provides that an officer holding a current appointment in the Army National Guard of the United States or United States Army Reserve which will not expire upon release from active duty who is sentenced to dismissal (commissioned officer) or dishonorable discharge (warrant officer) and confinement which has been served prior to completion of appellate review will be released from active duty upon completion of confinement. 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 (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. ABCMR Record of Proceedings (cont) AR20180002756 2 1