ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 July 2019

	DOCKET NUMBER:  AR20180007028


APPLICANT REQUESTS: an upgrade of his characterization of service from under conditions other than honorable to under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 arrested for fighting, as a result of racial harassment.  At his court martial he stayed silent because everyone in the courtroom was white.  He has owned his own business (restaurant) since 1996, and prior to that he was a truck driver.  He has never experienced the level of racial harassment than he did in Vietnam.  The early 70s was a different time, and racial harassment was ignored.  He wants his discharge upgraded so he can be proud of his time in the military.  He also states he never went absent without leave (AWOL), and was told to defend himself from the racial harassment.

3.  A review of the applicant’s service records shows:

	a.  He did not complete high school, and was inducted into the Army of the United States on 4 December 1969.

	b.  His DA Form 20 (Enlisted Qualification Record), shows he was reported for assignment in the Republic of Vietnam (RVN) on 7 February 1971.  He was placed in pre-trail confinement in RVN on 1 June 1971 through 18 July 1971, and his duty status was changed to confinement on 19 July 1971 while en route to the United States.  He remained confined through 28 October 1971 at Fort Dix, NJ.  The circumstances of his confinement are shown on a DA Form 458 (Charge Sheet) in which his command preferred court marital charges on him for:

* one specification of disrespect towards his superior commissioned officer
* one specification of offering violence to a superior commissioned officer
* one specification of assault towards a superior non-commissioned officer (NCO)
* two specifications of unlawfully striking another Soldier with closed fist
* one specification of wrongfully communicating a threat to a superior NCO
* one specification of wrongfully communicating a threat to a superior commissioned officer

	c.  SCMO Number 27, dated 20 October 1971, reflects that the applicant plead not guilty but found guilty of all charges except disrespect to a superior commissioned officer.  His sentence consisted of a bad conduct discharge (BCD), forfeiture of $50 for four months, and four months confinement with hard labor.  A sentence of a BCD, forfeiture of $50 for four months, and four months confinement with hard labor was approved on 20 October 1971.

	d.  SCMO Number 11, dated 10 January 1973, stated that the provisions of 
Article 71(c) Uniformed Code of Military Justice has been complied with, and the sentence will be duly executed.  It also stated that the portion of the sentence to confinement at hard labor has been served.

	e.  There is no record of the United States Army Court of Military Review affirmation for the Board to review.

	f.  	He was discharged on 6 February 1973 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11 (Character of Service/Description of Separation), with a under conditions other than honorable characterization of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows he completed 2 years, 9 months, and 5 days with 150 days of time lost from 1 June 1971 to 28 October 1971.

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

5.  By regulation, AR 635-200, in effect at that time, an enlisted person 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.

6.  By law, court-martial convictions stand as adjudged or as 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.

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 a pattern of misconduct, which included violent behavior 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, 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.

2.  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.
3.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 11 provided that an enlisted person would be given a BCD 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. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable.

	b.  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.

	c.  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. 

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.

ABCMR Record of Proceedings (cont)	 AR20180007028


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