ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20180004050

APPLICANT REQUESTS:  an upgrade of his dishonorable discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Congressional Letter
* Certificate of License

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 was accompanying another private who go into a fight; however, he did not participate in the fight.  He did not argue when he was arrested and at the age of 20, he was advised by counsel to take a plea bargain.  His counsel informed him that he could get up to 20 years or he could accept a plea bargain and only get 1 year.  He was scared and he thought that it was the right thing to do.  He adds that he was innocent and he is now an Ordained Minister and wants certification of ordination and certificate of license as a Minister.

3.  The applicant provides:

	a.  A letter from his congressional representative dated 21 March 2018, that asks Brigadier General (BG) X___ to review the applicant’s documents sent to his office from his constituent, who has a concern within his agency’s jurisdiction.  

	b.  A Certificate of License that he is in the Gospel Ministry, dated 17 August 2003.

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

	a.  He was inducted into the Army of the United States on 11 July 1962 and was honorably discharged on 12 September 1962 for immediate reenlistment.  He received a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
	b.  He enlisted in the Regular Army on 13 September 1962.
	c.  He served in Germany from 2 March 1963 to 9 August 1963.
	d.  On 10 June 1963, he was convicted by a general court-martial of one specification of stabbing a German national and intentionally inflicting grievous bodily harm.  The court sentenced him to forfeiture of all pay and allowances, reduction to the grade of private/E-1, confinement at hard labor for year, and a dishonorable discharge.

	e.  On 11 July 1963, the convening authority approved the sentence and forwarded the record of trial for review by the Staff Judge Advocate, Seventh Army Support Command. 

	f.  The Staff Judge Advocate affirmed the findings of guilty and the sentence.  On 20 September 1963 the applicant acknowledged receipt of the Board of Review.  He stated that he has been advised as to petition the Court of Military Appeals for a grant of review with respect to any matter of law within 30 days.

	g.  General Court-Martial Order Number 763, dated 23 October 1963 ordered the affirmed sentence duly executed.  That portion of the sentence pertaining to confinement had been served.

	h.  On 9 November 1963, he was discharged from the Army.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation (AR) 635-204 (Personnel Separations Dishonorable and Bad Conduct Discharges) with a dishonorable characterization of service.  He completed 6 months, and 15 days with 2 months, and 1 day of prior active service.  

5.  By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

6.  AR 635-204, in effect at the time, provided for separation of enlisted personnel with a dishonorable discharge pursuant to an approved sentence of a general court-martial.

7.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of honorable service completed prior to the serious misconduct which included violent behaviors towards others, the Board concluded that the characterization of service received at the time of separation 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 635-204 (Personnel Separations Dishonorable and Bad Conduct Discharges), in effect at the time, provided for separation of enlisted personnel with a dishonorable discharge pursuant to an approved sentence of a general court-martial. This regulation also provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial or a special court-martial imposing a bad conduct discharge.

3.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance.

	a.  Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor.  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.  Paragraph 3-7b (General discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c (Under other than honorable conditions) sates 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, homosexuality, security reasons, or for the good of the service.

	d.  Paragraph 3-10 (Dishonorable Discharge Certificate) states a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

5.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department.

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 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. 


ABCMR Record of Proceedings (cont)	 AR20180004050


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