ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20180015574 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 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 Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), for the periods ending 9 July 1958 and 31 December 1964 * email correspondence, dated 21 October 2016 * Privacy Act Release Form, dated 27 November 2018 * a letter from his spouse to his Member of Congress 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. Through his spouse, the applicant states: a. He served for approximately six years; he was honorably discharged in 1958 and decided to sign up again in 1961. During this time, he was a drill sergeant responsible for training recruits. His commanding officer called for his recruits to clean his living quarters for him. His recruits told him this officer was forcing them to perform sexual acts with and on him. The commanding officer found out the applicant had reported him and told the applicant that he would get even with him. b. The applicant was later stationed in Vietnam and Thailand. While stationed in Hawaii, he was accused of stealing a ring. The same person that took him to jail is the same person that accused him of stealing the ring. This person was also his previous commander’s driver. The applicant never did see the ring and was sent to Leavenworth. c. The applicant’s time in Leavenworth was bearable because he got along well with everyone. He was given an early release for good behavior as noted on his DD Form 214; because of his good character, he could reenlist. He tried several times to reenlist but grew frustrated and disgusted. This second discharge is keeping him from receiving his full Department of Veterans Affairs (VA) benefits. His request is not so much for the benefits but the fact that what he did was honorable and a demented person ruined his chances for a military career. 3. Following a period of prior honorable enlisted service, the applicant reenlisted in the Regular Army on 14 March 1961. 4. Before a special court-martial on 22 November 1961, at Belleville Air Force Station, IL, the applicant was found guilty of two specifications of striking two Soldiers in the face with his fists, on or about 25 September 1961, and an additional charge of being absent without leave (AWOL) from on or about 4 October through on or about 24 October 1961. He was sentenced to confinement at hard labor for six months, forfeiture of pay for six months, and reduction to the rank/grade of private/E-1. 5. Court-martial charges were preferred against the applicant on 30 July 1962, for violations of the Uniform Code of Military Justice (UCMJ). Specifically, he was charged with being AWOL from on or about 24 July through on or about 30 July 1962. He was tried and convicted before a summary court-martial on or about 4 August 1962. He was sentenced to hard labor without confinement for 45 days. 6. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 18 September 1962, for failing to go to his appointed place of duty on or about 16 September 1962 * on 16 March 1964, for being AWOL from 0600 hours to 0845 hours, on or about 3 March 1964 7. General Court-Martial Order Number 24, issued by Headquarters, 25th Infantry Division on 1 August 1964, shows the applicant was found guilty of stealing a man’s wedding ring on or about 30 April 1963, and during the month of November 1963, stealing the engagement ring of another Soldier. His sentence was adjudged on 18 June 1964 and included a dishonorable discharge, confinement at hard labor for one year, and forfeiture of all pay and allowances. His sentence was adjudged on 18 June 1964, was approved on 1 August 1964, and, except for the portion related to the dishonorable discharge, was ordered to be executed. The record of trial was forwarded to the U.S. Army Board of Military Review for appellate review. 8. General Court-Martial Order Number 981, issued by Headquarters, Fort Leavenworth, KS on 17 December 1964, noted that the applicant's sentence had been finally affirmed and ordered the remainder of his sentence, including his dishonorable discharge, to be duly executed. The applicant was ordered to be confined at the U.S. Disciplinary Barracks at Fort Leavenworth. 9. The applicant was discharged on 31 December 1964. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations, Dishonorable and Bad Conduct Discharge), paragraph 1a. His service was characterized as UOTHC. His DD Form 214 shows he was issued a DD Form 259A (Bad Conduct Discharge (BCD) Certificate). 10. The Board should consider the applicant's statement, through his wife, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and supporting documents 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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the severe pattern of 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 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 635-200 (Personnel Separations – Enlisted Personnel), 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. 3. Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person would be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge. The appellate review must be completed and the affirmed sentences ordered duly executed. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 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. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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. b. 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// ABCMR Record of Proceedings (cont) AR20180015574 4 1