ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2019 DOCKET NUMBER: AR20180006709 APPLICANT REQUESTS: an upgrade of his under conditions other than honorable to a general APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * five character letters 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 his application and a self-authored statement: a. He got into some trouble some 52 years ago. He was young, dumb and immature. He had no responsibilities and did not care about anything. He received a letter from his brother informing him that their dad was ill and out of work. All he could do was write his brother back saying he was sorry but he had no money to help until the end of when he received his pay. He sent all he could but as an E-3 it was not much. b. One night he felt sorry for himself and went downtown and tried to drown his problems by drinking. He started feeling pretty good, then he felt sick. He went back to base and after a while he felt better. A friend of his came to the room and they decided open the snack bar but they could not get the door open, so they tried the skylight but fell through the ceiling and landed inside of the Post Exchange (PX). He was shook up and in a daze but once he got himself together, it was if he was a child in a fantasy land. c. He gathered things for his family and other items to sell to make money to send home. They were captured by military police and sentenced to two years and a dishonorable discharge. He was seventeen young, dumb and immature with no responsibilities. He knows what he did was stupid and he made a big mistake. He is now a changed man who has been married for 48 years and retired from EI Dupont with 31 years of service. He asks the Board to please consider upgrading his discharge to general under honorable conditions. 3. The applicant provides: a. Five letters of support which shows he is a model citizen who has learned from his past mistakes. He has worked with underprivileged youth and serves the community in an exemplary manner. He is a member of the First Baptist Church, where he brings about positivity around all those he encounters. He is a dedicated husband, father, and grandfather a man of integrity and hard work. b. A newspaper article highlighting his role as the president of the Celebration Male Chorus and his many contributions and good works. c. A letter from the National Personnel Records Center which provides him with documents from his file. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 January 1965. b. He received nonjudicial punishment on/for: * 23 August 1965, for failure to be at his assigned place of duty * 1 November 1965, for being absent without leave (AWOL) * 24 March 1966, for being AWOL * 13 December 1966 for being AWOL c. On 10 June 1966, the applicant was convicted by Special Court Martial Order (SCMO) # 14, for one specification of attempting to steal merchandise from the Post Exchange valued at $1,371.45, one specification of damaging military property, and one specification of unlawful entry. The court sentenced him to be dishonorably discharged from the service, forfeiture of all pay and allowances, to be confined at hard labor for 2 years and reduction to the lowest enlisted rank of E-1. d. SCMO #14, dated 8 August 1966, only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for 6 months, and forfeiture of all pay and allowances. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. e. On 7 October 1966, the appellate rendered a decision that states the court having found the approved findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved, such findings of guilty and the sentence were affirmed. f. General Court Martial Order #9, dated 24 January 1967, affirmed the sentence and ordered the bad conduct discharge be duly executed. g. The applicant was discharged on 7 February 1967. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharge), paragraph 1b, for conviction by a general court-martial, SPN 292. His characterization is under conditions other than honorable. He completed 1 year, 7 months and 13 days of net service during this period with 161 days of lost time. 5. There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge. 6. By regulation AR 635-204, paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 7. In reaching its determination, the Board can consider the applicants 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 and letters of support 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. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included multiple offense of a criminal nature, 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. AR 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 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. 3. 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. 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. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180006709 4 1