ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180013048 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20160011291 on 22 August 2018. Specifically, he requests his clemency discharge be further upgraded and a personal hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 20 November 1972 * DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty), dated 22 October 1976 * A hand-written letter to the "Health Eligibility Center" FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160011291 on 22 August 2018. 2. The applicant states his clemency discharge was issued in recognition of satisfactorily completed alternative service pursuant to Presidential Proclamation 4313 (PP 4313). The supervisor of administrative services at the Department of Veterans Affairs (VA) said his clemency upgrade is no good because his DD Form 214 still shows his character of service as "conditions other than honorable." 3. The applicant enlisted in the Regular Army on 29 September 1969. 4. The applicant accepted non-judicial punishment (NJP) on 12 March 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 8 January 1970 through on or about 3 March 1970. 5. Before a general court-martial on or about 17 July 1972, the applicant was found guilty of being AWOL from on or about 26 May 1970 through on or about 23 May 1972. The court sentenced him to reduction to the rank/grade of private/E-1, confinement at hard labor for one year, forfeiture of all pay and allowances, and discharge from the service with a bad conduct discharge (BCD). The sentence was approved on 18 August 1972 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. General Court-Martial Order Number 1246, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 30 October 1972, noted that the sentence had finally been affirmed and ordered it to be duly executed. 7. The applicant was discharged on 20 November 1972. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court-martial, and his service was characterized as under conditions other than honorable (UOTHC). His DD Form 214 further confirms he was issued a DD Form 259A (BCD Certificate). 8. The applicant’s record contains a DD Form 215, dated 22 October 1976, which indicates he was issued a clemency discharge in recognition of satisfactory completion of alternative service pursuant to PP 4313. 9. Under the provisions of PP 4313, the applicant was required to serve some form of alternate service, which the evidence shows he completed. Completing the requirements of the program provided for a clemency discharge; however, the granting of clemency did not affect the characterization of service warranted by the underlying discharge action. 10. The Board should consider the applicant's overall record of service and his statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief and amend ABCMR's decision in Docket Number AR20160011291 on 22 August 2018. 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 found that the applicant’s honorable service prior to the misconduct in addition to the applicant’s successful completion of time served in the Presidential Clemency Program under PP 4313, dated 16 September 1974, which was issued by President Ford, have mitigated the misconduct. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief and amend ABCMR's decision in Docket Number AR20160011291 on 22 August 2018. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 showing the following amendments: • Character of Service to Under Honorable Conditions "General" Discharge 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 635-200, in effect at the time, set 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. 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. 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. PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge. The clemency discharge did not affect the underlying discharge. 5. 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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//