BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180009238 APPLICANT REQUESTS: in effect, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions promulgated in Dockets Number AR20120018248 and AR20140021401, on 21 May 2013 and 3 March 2015, respectively. 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 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552), dated 9 January 2018 * an undated letter from the Disabled American Veterans (DAV) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's cases by the ABCMR in Dockets Number AR20120018248 and AR20140021401, on 21 May 2013 and 3 March 2015 respectively. 2. As a new argument, the applicant states in effect, that while serving in Germany, he was informed by the company clerk that he was past his expiration term of service date. He asked why he wasn’t sent home to his children, as he was a single father. He stopped participating in military activities because he was ready to go home and got the impression from the clerk the Army also thought he was no longer serving. 3. The applicant enlisted in the New Jersey Army National Guard (NJARNG) on 1 April 1963. He was ordered to initial active duty for training (IADT) on 13 April 1963 and was honorably released back to the control of the NJARNG on 12 October 1963. The DD Form 214 he was issued shows he completed training and was awarded military occupational specialty (MOS) 310.00 (Field Communications Crewman). 4. The applicant was discharged from the NJARNG on 25 May 1964 and was reassigned to the U.S. Army Reserve (USAR) Control Group (Annual Training), by reason of his continued and willful absence from military duties. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he received a general discharge. 5. Letter Orders Number A-08-2746, issued by Headquarters Fifth U.S. Army, Fort Sheridan, Ill on 15 August 1968, involuntarily ordered the applicant to active duty by the direction of the President. These orders show he was ordered to report to Fort Leonard Wood, Missouri not later than 17 September 1968. His DA Form 20 (Enlisted Qualification Record) shows he entered active duty on 5 December 1968. 6. The applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 18 February 1969, for absenting himself from his organization, at the U. S. Army Replacement Station, Fort Jackson, SC, on or about 23 January 1969, and remaining so until on or about 16 February 1969. b. On 26 September 1969, for one specification of absenting himself from his appointed place of duty; one specification of disobeying a lawful order from his superior noncommissioned officer (NCO) and one specification of disobeying a lawful command from his superior commissioned officer, on or about 24 September 1969; for one specification of absenting himself from his appointed place of duty; and one specification of behaving disrespectfully towards his superior NCO, on or about 25 September 1969, at Wildflecken, Germany. c. On 21 October 1969, for one specification of absenting himself from his appointed place of duty and for being disrespectfully in language towards his superior NCO, on or about 21 October 1969, at Wildflecken, Germany 7. Before a special court-martial on or about 14 May 1970, at Wildflecken, Germany, the applicant was tried and convicted of the following violations of the UCMJ: * one specification of disobeying a lawful order, on or about 28 October 1969 * one specification of being absent without leave (AWOL), from on or about 1 November 1969 until on or about 18 November 1969 * one specification of being AWOL, from on or about 27 November 1969 until on or about 7 January 1970 * one specification of being disrespectful in language towards an officer, on or about 6 February 1970 * one specification of acting violently toward an officer by pushing and striking him with his fist, on or about 6 February 1970 * one specification of disobeying a lawful order from an NCO, on or about 6 February 1970 * one specification of being disrespectful in language toward an NCO, on or about 26 January 1970 8. The applicant's sentence included confinement for one month at hard labor, and separation from service with a BCD. His sentence was approved on 9 June 1970, except for that portion extending to the BCD, and was ordered executed. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 9. The appellate review was completed on 22 March 1971 and the findings of guilty and sentence as approved by the convening authority were determined to be correct in law and fact. A copy of this decision could not be delivered to the applicant because he was reported AWOL from the U.S. Army Returnee – Reassignment Station, Fort Dix, NJ, on 15 June 1970. 10. The applicants DA Form 20 shows he was returned to military control on 13 March 1971, after being in an AWOL status for 258 days. 11. Special Court-Martial Order Number 118, issued by Headquarters (HQ), U.S. Army Training Center, Infantry, Fort Dix, Fort Dix, NJ, on 6 May 1971, noted that the sentence in the applicant's court-martial had been affirmed and ordered his BCD duly executed. 12. Special Orders, shows the applicant was ordered discharged pursuant to his court- martial sentence, effective 24 March 1972, and he would be issued a BCD. His DD Form 214 is not available for review; however, his discharge resulted from his court- martial sentence. 13. 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. 14. The applicant provides an undated DAV letter that states the applicant is homeless, in advanced age, and requesting a review of his case. 15. The Board should consider the applicant’s request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence on 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 results of a court-martial, his subsequent absence, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for his serious misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 to amend the decisions of the ABCMR set forth in Docket Numbers AR20120018248 and AR20140021401, on 21 May 2013 and 3 March 2015, respectively. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. c. Paragraph 3-10 provides that 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. 2. 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. 3. 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) AR20180009238 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1