ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180011789 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge. 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 11 August 1972 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 when he enlisted, he was confused and did not know what he wanted to do with respect to his career. After enlisting, he became even more confused and he was afraid of going to war in Vietnam, so he fled the Army. Since then he has turned his life around and he has held steady employment until becoming disabled six years ago. He now lives with his sister and brother-in-law, who are taking care of him after becoming 100% disabled. He would like to clear his record before passing. 3. The applicant enlisted in the Regular Army on 30 August 1971. He entered active duty but did not complete either basic or advanced individual training. 4. The applicant received nonjudicial punishment (NJP) on 15 September 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 13 September 1971 through on or about 14 September 1971. 5. Before a general court-martial on or about 8 March 1972, at Fort Ord, California, the applicant was convicted of being AWOL from on or about 1 October 1971 through on or about 4 October 1971; larceny (theft of an M-16 rifle), on or about 1 October 1971; and escaping confinement, on or about 20 October 1971. His sentence included his separation from service with a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 18 months. The sentence was approved on 26 April 1972 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. Before a special court-martial on or about 6 September 1972, at Fort Leavenworth, Kansas, the applicant was convicted of escaping confinement, on or about 3 August 1972. His sentence included his confinement at hard labor for four months. The sentence was approved on 11 September 1972. 7. Before a special court-martial on or about 1 December 1972, at Fort Leavenworth, Kansas, the applicant was convicted of attempting to escape confinement, on or about 5 November 1972. His sentence included his confinement at hard labor for five months. The sentence was approved on 14 December 1972. 8. The U.S. Army Court of Military Review affirmed the sentence in the applicant's general court-martial case and the general court-martial convening authority ordered his discharge duly executed. 9. The applicant was discharged on 11 August 1972. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b, by order of a court-martial, he was issued a DD Form 259A (BCD Certificate), and his service was characterized as under other than honorable conditions. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the serious misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have partly mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Further, the statutory authority under which this Board was created precludes any action by this Board which would disturb the finality of a court-martial conviction. 3. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 11-1b, as then in effect, provided for the separation of personnel by reason of a sentence of a court-martial. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20180011789 0 3 1