ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180004834 APPLICANT REQUESTS: * reconsideration of his previous request for an upgrade of his dishonorable discharge * to be provided with records from boxing teams in 1972 at Fort Bragg, NC and jump school at Fort Benning, GA in 1971 or 1972 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). 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 unknown Docket Number on 15 August 1980. 2. The applicant states he has done wrong by being with the wrong and young people. He has tried at this age, it’s hard to get his life with his son and six grandchildren. He needs a life that he never had growing up with an abusive father. He would like his records from the special services boxing team in 1972 by 35th Signal Group and jump school at Fort Benning, GA in 1971. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 23 October 1970. b. He completed training and held military occupational specialty 76Y (Supply Specialist Armorer). He completed Basic Airborne Course at Fort Benning, GA from 26 March 1971 to 21 April 1971, he was issued Special Orders Number 197 from Headquarters XVIII Airborne Corps on 7 September 1972. His record is void of any documents pertaining to jump records. c. On 29 July 1971, he accepted non-judicial punishment (NJP) for failure to go at the time prescribed to his appointed place of duty on 9 July 1971. His punishment consisted of reduction to private/E-2 (suspended). d. On 11 January 1972, he was arraigned and tried by a general court-martial, of one specification of stealing a rifle, 5.56mm, M-16, on or about 31 July 1971. The court dismissed the case on the grounds of motion by the defense of lack of speedy trial. The findings were announced on 12 January 1972. e. On 14 May 1972, he accepted NJP for absent without leave (AWOL) from his unit from 27 April 1972 to 1 May 1972. f. On 19 December 1972, his DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant was under observation for a line of duty (LOD) at Womack-Army Hospital on Fort Bragg, NC for a head injury while attached to the Special Services Boxing Team by 35th Signal Group. He was serving in this capacity and was sparring with his partner at the post boxing arena and took a blow to the head, became groggy, took a few more punches and passed out. His record is void of any other records pertaining to the boxing team. g. He accepted NJP for infractions on/for: * 12 February 1973, dereliction in the performance of his duties on 30 January 1973 * 12 February 1973, AWOL to several formations on or about 2-4 February 1973 (reduction to private first class/E-3 suspended) * 15 March 1973, failed to go to his prescribed appointed place of duty on 15 February 1973 and reporting late to his appointed place of duty and leaving appointed place of duty for extra duty on 16 February 1973 * 15 March 1973, failed to go at the time prescribed to his appointed place of duty extra duty, on 15-16 February 1973 and not showing to formations to appointed place of duty, extra duty on 22-26 February 1973; (reduction to private/E-2; confinement for 30 days at Fort Bragg Correctional Facility- suspended) h. On 17 December 1973, he was convicted by a general court martial one specification each: * unlawfully enter the room of Private First Class X___ to commit larceny * unlawfully enter the post exchange snack bar the property of the U.S. Government to commit larceny * steal one Garrard turntable, one Olympic tape player, one AM/FM unit with two air suspension speakers of a value of $100.00 the property of PFC X___ * steal two “The Pipe” brand pipes, one Polaroid camera, one Instamatic camera model 20 and 30, one automatic radio 8 track tape player with remote speakers, (1) Admiral radio with digital clock, (1) Toshiba AM/FM radio and cassette, one hair styling comb, one General Electric cassette tape recorder, one automatic radio car tape player, four men’s Timex watches, one ladies Timex watch, two pairs jump boots, one color television of a value of $825.35, the property of the U.S. Government i. The court sentenced him to be discharged from the service with a dishonorable discharge, confinement at hard labor for 6 years, forfeiture of all pay and allowances becoming due on and after the date of the action and reduction to the lowest enlisted grade was approved by the convening authority. j. On 4 March 1974, the convening authority approved the sentence, and except for the dishonorable discharge, ordered it executed. He further ordered the forfeiture shall apply to pay and allowances becoming due on and after the date of this action, and the record of trial is forwarded to The Judge Advocate General of the Army for review by the Court of Military Review. k. On unknown date, the applicant petitioned the United States (U.S.) Court of Military Appeals and he was notified of the decision of the U.S. Court of Military Review denying the petition. l. General Court-Martial 778, issued by Headquarters, U.S. Disciplinary Barracks, on 13 September 1976 shows the sentence was affirmed and the dishonorable discharge, forfeiture of pall pay and allowances becoming due on and after the date of the convening authority’s action, confinement at hard labor for 4 years would be executed, so much of the sentence to confinement at hard labor as is in excess of 5 years was remitted. The provisions of Article 71(c) having been complied with, the sentence as thus modified would be duly executed. m. On 12 March 1977, the applicant was discharged with a dishonorable character of service under provisions of Army Regulation (AR) 635-200, chapter 2 (Personnel Separations-Enlisted Personnel) for a general court-martial. His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 11 months, and 27 days of active service with 720 days of lost time from 27 April 1972 to 30 April 1972; 12 September 1973 to 22 October 1973; 1,208 days lost subsequent to normal expiration term of service from 23 October 1973 to 18 November 1973; 17 December 1973 to 12 March 1977. It also shows he was awarded or authorized: * National Defense Service Medal * Parachute Qualification Badge * Sharpshooter, Marksmanship Qualification Badge with Rifle Bar (M-16) n. The applicant petitioned to the ABCMR seeking a discharge upgrade. The ABCMR, on 15 August 1980, administratively denied his request. 4. By regulation, AR 635-200 paragraph 11-1, an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 5. 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. 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. 7. The applicant requested the Board provide his records for the boxing team and jump school. a. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The Board is not an investigative body. b. The ABCMR is neither a records repository nor custodian of military records. Veterans can request documents from their Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), by forwarding a request to the National Personnel Records Center (NPRC) (Military Personnel Records), 1 Archives Drive, St. Louis, MO 63138-1002. Requests to the NPRC may be submitted online through the eVetRecs system at http://www.archives.gov/veterans/military-service-records/standard-form-180.html, via mail by completing a Standard Form 180 (Request Pertaining to Military Records), which is available for download at the same website. 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 a pattern of misconduct, which included serious criminal behaviors, 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, sets forth the basic authority for 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. When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 11-1 states an enlisted person will be given a dishonorable 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. 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. ABCMR Record of Proceedings (cont) AR20180004834 5 1