ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  20 May 2019

	DOCKET NUMBER:  AR20180015436


APPLICANT REQUESTS:  his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, and restoration of his declaration as an Honor Guard for President Jimmy Carter. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

* DD Forms 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 October 2018
* DD Form 214 (Certificate of Release or Discharge for Active Duty), for the period ending 16 October 1980
* Electronic service date verification, undated 

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 does not provide a statement in support of his request.

3.  The applicant enlisted in the Regular Army on 27 November 1978.

4.  The applicant accepted non-judicial punishment (NJP) on 13 September 1979, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for assaulting a Korean citizen and assaulting a fellow Soldier, on or about 7 September 1979, in the Republic of Korea.  

5.  The applicant service records contains the following:

* a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 27 November 1979, which shows he was pending Article 92 court-martial actions
* Orders Number 348-53, issued by the U.S. Army Military Personnel Center Korea, assigning the applicant to the Personnel Control Facility (PCF), Headquarters Command, Fort Ord, CA, effective 18 December 1979

6.  Special Court-Martial Number 2, dated 7 January 1980, shows the applicant was tried before a special court-martial on 10 December 1979 and was convicted of multiple violations of Article 92; specifically, violating a lawful general regulation by wrongfully purchasing certain products in excess of monthly dollar limitations and quantity limitations, during the month of August 1979, at various post exchanges and Class VI stores in the Republic of Korea.  

7.  The applicant was sentenced to be confined at hard labor for 45 days and to be discharged from service with a bad conduct discharge (BCD).  The sentence was approved on 8 January 1980 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review.

8.  The applicant was placed on excess leave on 1 February 1980.  

9.  The U.S. Army Court of Military Review affirmed the findings and sentence in the applicant's special court-martial.

10.  Special Court-Martial Order Number 80, issued by Headquarter, 7th Infantry Division and Fort Ord, Fort Ord, CA on 24 September 1980, noted that the applicant's sentence had finally been affirmed and ordered the applicant's BCD duly executed.  

11.  The applicant was discharged on 16 October 1980.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court-martial.  He received a BCD and his service was characterized as UOTHC.

12.  The applicant provides and electronic service data verification, showing his service was considered honorable for Department of Veterans Affairs (VA) purposes.  

13.  The applicant’s service record does not indicate he served on a special detail or Honor Guard for President Jimmy Carter.  

14.  The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, the evidence in the record and published guidance for consideration of discharge upgrade requests.  The Board noted multiple instances of serious misconduct in the record and found no mitigating factors in the record and there were none provided by the applicant.  The Board weighed the nature and frequency of the misconduct and determined that clemency was not warranted.  Further, the Board found no evidence of the applicant’s participation on a special detail or as an Honor Guard during his period of service. 

2.  After a review of the evidence, the Board determined 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 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.  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 ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

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.  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.

ABCMR Record of Proceedings (cont)	 AR20180015436


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