ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20180012116


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge to a general under honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement
* Request for Name Change
* Grant of Executive Clemency

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 there was not an error.  He is requesting an upgrade according to the grant of executive clemency.  He received a full pardon pursuant to an executive grant of conditional clemency on 23 August 1975 from President Gerald R. Ford.  He does not need medical benefits or any other special benefits.  He is married, retired, and own his own home.  He has made mistakes that he will have to live with for the rest of his life.  His lists of accomplishments include:

* employment at Atlanta Transit Authority as an automatic train control lab technician and a rail car maintenance repairman from which he retired
* employment at the New York City Transit Authority as a bus operator
* employment at the Board of Education
* certificate for computer technician from New York Career Center
* certificate and license for fire adjuster from Pohs Institute, Inc  

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

	a.  He was inducted into the Army of the United States on 7 March 1968.  
	b.  On 7 May 1971, he was found guilty by special court-martial of one specification of absence without leave (AWOL) from 3 February 1969 to 26 January 1971.  His sentence of a discharge from the service with a bad conduct discharge was affirmed and ordered duly executed on 29 October 1971.

	c.  On 28 January 1972, he was discharged from active duty under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) and issued a under other than honorable characterization of service.  He was furnished a DD Form 259A (Bad Conduct Discharge) pursuant to his approved special court-martial sentence.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects that the completed 1 year, 7 months, and 20 days of active service with 722 days of lost time from 3 February 1969 to 26 January 1972.  It also shows that he was award or authorized the National Defense Service Medal.

	d.  On 3 May 1976, DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) was issued adding DD Form 1953A (Clemency Discharge) in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4313.

	e.  On 28 September 1978 and 2 March 1981, the Army Discharge Review Board determined that he was properly discharged.  His request for a change in the type and nature of his discharge was denied.  

4.  By regulation, 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.

5.  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.

6.  Presidential Proclamation 4313 provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any Veterans Administration benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is warranted.  The applicant’s contentions and post-service achievements 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 misconduct being an isolated incident in the record, the demonstrated growth of the applicant through the employment history outlined and the applicant accepting responsibility for his misconduct, as well as the passage of time, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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 (Personnel Separations – Enlisted Personnel), 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 will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of 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 of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 11-2 (DD Form 259A (Bad Conduct Discharge) states 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.

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 the 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, 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 upgrade service characterization.  

4.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any Veterans Administration benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

5.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief.  This was a mandate to the Army Discharge Review Board (ADRB) from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180012116


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