ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180005995 APPLICANT REQUESTS: an upgrade of his under conditions other than honorable discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Self-Authored Statement 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 that he enlisted in the Army at Fort Lewis, WA and after completion of his basic training he transferred to Fort Ord, CA. He held military occupational specialty 71B (Personnel Administration Specialist) and while at Fort Ord, during his advanced initial training, he was caught up in some trouble which caused him to end up in Fort Leavenworth prison. He is not making up excuses as to why he was sent there, he just made bad decisions during that time. He was not mentally mature as he thought that he was and he regrets the mistakes he made over 46 years ago. Since then, he has suffered with 5 strokes, a plug in his heart and he was in the nursing home for 3 months. He has been married over 22 years and has 4 adult children and 7 grandchildren. He knows he is blessed and he realizes that it has been a while since he was discharged but, he is asking to be upgraded to a general discharge. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 10 September 1971. b. On 28 April 1972, the applicant underwent a psychiatric evaluation to determine if he was stable to withstand his court charges. The psychiatrist noted that previously the applicant did not desire restoration, he now wishes to return to duty. However, the examining psychiatrist determined in view of his past history and personality makeup, restoration is not recommended. He further stated that there were no psychiatric indication for clemency at the present time. c. On 3 March 1972, he was convicted by a general court martial of one specification of robbery on or about 3 January 1972, by means of force and violence, stealing currency in value of $170 from another Soldier, one specification of larceny on or about 2 January 1972, stealing a set of wedding rings of value of $299, and one specification of wrongful possessing marijuana on or about 3 January 1972. d. The court sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years. e. On 8 May 1972, the convening authority approved only so much of the sentence as provides for bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 12 months is approved. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review, f. On 9 June 1972, the U.S. Army Court of Military Review affirmed the findings of guilty and approved the sentence. g. On 19 July 1972, General Court-Martial Order 842, shows the sentence had been affirmed and the bad conduct discharge would be executed. h. On 21 August 1972, the applicant was discharged. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of his general court-martial conviction in accordance with Paragraph 11-1b, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), with under conditions other than honorable discharge and he was issued a Bad Conduct Discharge Certificate. He completed 3 months and 24 days of creditable active military service with lost time under 10 USC, 972 from 4 January 1972 to 21 August 1972. His DD Form 214 also shows he was awarded or authorized the: * Expert Marksmanship Qualification Badge with Hand Grenade Bar * National Defense Service Medal 5. By regulation (AR 635-200), 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. 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, 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 multiple serious criminal offenses which led to the applicant’s separation, 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, 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 certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated 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. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or discharge under less than honorable conditions. When member’s service is characterized as general, except when discharge by reason for unsuitability, misconduct, or security, the specific basis for such separation will be included in the member’s military personnel record. c. Paragraph 11-1 provides for a Dishonorable Discharge. It states 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. 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. By regulation (635-200), paragraph 11-2, in effect at the time states a member 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 duly executed. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005995 3 1