ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20180013670 APPLICANT REQUESTS: reconsideration for an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions or honorable. 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 149 (Application for Correction of Military Record) * General Court Martial Order (GCMO) Number 16 * Review of Staff Judge Advocate * Summary of Evidence * Response to Congressional Inquiry * Clemency and Parole Action Record FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150017148 on 13 April 2017. 2. The applicant states, that his charges were reviewed by then, Congressman X during his incarceration. His view was that his incarceration was not warranted, and he believes Congressman X ordered his release. The initial charge was never changed to reflect the Congressman’s reversal. He states that the information he provided, exhibits 1-5, recommended restoration, and he believes it means a change in discharge status from under other than honorable conditions to under honorable conditions is warranted. 1. 3. The applicant provides: a. General Court Martial Order (GCMO) Number 16, dated 28 February 1974, which states the applicant was found guilty of larceny and assault, and sentenced to a bad conduct discharge (BCD), forfeiture of all pay and allowances, and three years confinement with hard labor. b. Review of Staff Judge Advocate, dated 27 February 1974, which reflects the charges, maximum sentence, adjudged sentence and recommendation for sentencing by staff judge advocate. c. Summary of Evidence, which explains the details of the court martial. d. Response to Congressional Inquiry, dated 20 February 1974, which states that the applicant was found to be the ringleader in the incident which caused him to be court martialed and that he received a lesser sentence than his accomplice because he requested a different type of trial. e. Clemency and Parole Action Record, which states that the applicant’s parole has been waived, he has a domicile rating of excellent and his work rating was outstanding. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 27 September 1972. b. On 29 March 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of failure to be at appointed place of duty. c. GCMO Number 16, dated 28 February 1974, reflects that the applicant plead not guilty but found guilty of one specification each of robbery and assault. His sentence consisted of a BCD, forfeiture of all pay and allowances, and three years confinement with hard labor. A sentence of a BCD, forfeiture of all pay and allowances, and two years confinement with hard labor was approved on 28 February 1974. d. GCMO Number 45, dated 15 January 1975, ordered the applicant to be restored to duty pending completion of an appellate review, and restoration of all pay and allowances. It also stated that confinement with hard labor in excess of 20 months, and the unexecuted portion of the sentence to confinement at hard labor was remitted by the Secretary of the Army on 29 July 1974. e. On 14 February 1975, the applicant accepted NJP under the provisions of Article 15 for one specification of failure to obey a lawful order. a. f. On 28 February 1975, the United States Army Court of Military Review declared the findings of guilty and the sentence are affirmed. g. On 11 March 1975, the applicant acknowledged receipt of a copy of the decision of the United States Army Court of Military Review. The United States Court of Military Appeals denied a petition for review on 11 June 1975. h. GCMO Number 28, dated 8 July 1975, 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. i. He was discharged on 10 September 1975 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11 (Character of Service/Description of Separation), Section IV (Dishonorable and Bad Conduct Discharge). His DD Form 214 (Report of Separation from Active Duty), shows he completed 2 years, 6 months, and 27 days with 137 days of time lost from 31 August 1973 through 14 January 1975. It also shows in: * item 26 (Decorations, Medals. Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized): Marksman Marksmanship Badge with Rifle Bar * item 9a (Type of Separation), Discharge * item 9c (Authority and Reason), AR 635-200, Chapter 11, Separation Program Designator JJD (As a result of court-martial, other) * item 9e (Character of Service), Under Other Than Honorable Conditions 5. The applicant applied to the ABCMR on 20 October 2015, and was denied in full on 13 April 2017. He also supplied a statement in that report of proceedings that admitted to his wrongdoings. 6. 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. 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. 8. 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 1. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the violent and criminal nature of the misconduct which led to the applicant’s discharge, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 decision of the ABCMR set forth in Docket Number AR20120002909 on 23 August 2012. 6/25/2019 X CHAIRPERSON Signed by: 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. 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. 3. 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. 1. 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. //NOTHING FOLLOWS//