IN THE CASE OF:  

BOARD DATE:  20 December 2019

DOCKET NUMBER:  AR20180004760


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction 
of Military Records (ABCMR) decision promulgated in Docket Number AR20110015898 
on 12 February 2012.  Specifically, he requests his bad conduct discharge (BCD) be 
upgraded to an under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States), dated 5 December 2017

FACTS:

1.  Incorporated herein by reference are military records that were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Number 
AR20110015898 on 12 February 2012.

2.  The applicant states that while serving in Vietnam, he turned to drugs to cope with 
daily life in Vietnam.  He was young and war was a very hard experience.  He regrets 
his actions but having spent almost a year in Vietnam, he believes he deserves an 
upgrade of his characterization of service.

3.  The applicant's contention that his drug abuse was a mitigating factor is considered a 
new argument not previously considered by the Board.

4.  The applicant enlisted in the Regular Army on 24 February 1965. 

5.  The applicant served in Vietnam from on or about 10 December 1965 through on or 
about 22 November 1966.

6.  The applicant accepted nonjudicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ), on the following dates:

*	on 10 July 1965 and 22 October 1965, for being absent without leave (AWOL)
*	on 16 November 1965, for failing to be at his appointed place of duty
*	on 15 December 1965, for being insubordinate toward his superior 
noncommissioned officer
*	on 1 May 1966, for breaking medical quarantine
*	on 12 August 1966, for carelessly discharging a round from his M-14 rifle in his 
squad tent

7.  Before a special court-martial on or about 2 December 1969, at Fort Dix, New 
Jersey, the applicant was found guilty of being AWOL from on or about 7 June 1967 to 
on or about 24 September 1969.  The recommended sentence was forfeiture of $80.00 
pay per month for two months, confinement for two months, reduction to private/E-1, 
and separation from service with a BCD.

8.  The findings and sentence were approved by the court-martial convening authority 
and directed, except for the BCD, to be executed.  The record of trial was forwarded to 
the U.S. Army Court of Military Review for appellate review.

9.  The U.S. Court of Military Review affirmed the findings and sentence on 10 April 
1970.

10.  Special Court-Martial Order Number 602, issued by Headquarters, U.S. Army 
Training Center, Infantry, Fort Dix, NJ on 10 April 1970, shows that after completion of 
all required post-trial and appellate reviews, the convening authority ordered the 
applicant's BCD executed.

11.  The applicant was discharged on 11 September 1971.  The DD Form 214 he was 
issued shows he was discharged under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), with separation program number (SPN) 
292, by reason of court-martial sentence.  His DD Form 214 further shows his service 
was characterized as under other than honorable conditions and he was issued a 
DD Form 259A (BCD Certificate).

12.  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.

13.  The applicant's record documents no acts of valor, significant achievement, or 
service warranting special recognition. 

14.  The applicant has not provided and the record does not contain any evidence of 
any drug abuse or addiction treatment or disciplinary actions related to drugs.

15.  The ABCMR denied the applicant's request for an upgrade on 12 February 2012, 
indicating that based on his overall record of misconduct, his service clearly did not 
meet the standards of acceptable conduct and performance of duty for Army personnel.  
His misconduct rendered his service unsatisfactory.

16.  The ABCMR reconsidered the applicant's request for an upgrade and determined 
that he had not met the requirements for reconsideration.  The case was 
administratively closed on 7 August 2014.

17.  The Board may consider the applicant's petition, his service record, year of service 
in Vietnam, and his statements in light of the published guidance on equity, injustice, or 
clemency.


BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant's statement, his record of 
service, the frequency and nature of his misconduct, the reason for his separation and 
whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigating factors and the applicant provided no evidence of post-service achievements 
or letters of reference in support of a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XX	:XX	:XX	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, U.S. Code, Section 1552, the authority under which this Board acts, the 
ABCMR is not empowered to set aside a conviction.  Court-Martial convictions stand as 
adjudged or modified by appeal through the judicial process.  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.  

2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets 
forth the basic authority for the separation of enlisted personnel.  It provides:

   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.  A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

	c.  Paragraph 3-11 provides that a Soldier will be given a BCD/DD only pursuant to 
an approved sentence of a general or special court-martial.  The appellate review must 
be completed and the affirmed sentence ordered duly executed.  

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records 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 a discharge, 
which may be warranted on equity or relief from injustice grounds.  

   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 on the basis of equity, injustice, or clemency 
grounds, Boards 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)	 AR20180004760


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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