ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20190000358 APPLICANT REQUESTS: * In effect, correct his DD Form 214 (Report of Separation from Active Duty) to correctly list his awards of an Expert and a Marksman Marksmanship Qualification Badge * In effect, upgrade his bad conduct discharge under other than honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 states his attorney never told him he could have gotten a separation under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), or that he could have reenlisted. He asserts he received bad representation. 3. The applicant's service records show: a. He enlisted into the Regular Army on 24 November 1975 for a 3-year term; he was 18 years old. * on 21 January 1976, while participating in basic combat training (BCT), the applicant was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * on 28 January 1976, also during BCT, he was awarded the Expert Marksmanship Qualification Badge with Grenade Bar * on 24 March 1976, while in advanced individual training for military occupational specialty 11B (Infantryman), his chain of command promoted him to private (PV2)/E-2 * on completion of initial training, orders assigned him to Fort Lewis, WA; he arrived on 6 Apr 1976 b. Between 23 July and, on or about, 19 September 1976, the applicant accepted three nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the following UCMJ violations: * 23 July 1976 – failing to go to his appointed place of duty at the time prescribed and for using disrespectful language toward a superior noncommissioned officer * 3 August 1976 – failing to go to his appointed place of duty at the time prescribed * 25 August 1976 – failing to go to his appointed place of duty at the time prescribed * on or about 19 September 1976 – failing to go to his appointed place of duty at the time prescribed c. On 14 December 1976, a special court-martial empowered to adjudge a bad conduct discharge convicted the applicant of UCMJ violations. (1) The court convicted him of the following charges: * Article 121 (Larceny) – stealing PV2 B__ D. C__'s vehicle * Article 134 (General Article – Obstructing Justice) – wrongfully and unlawfully endeavoring to influence and alter PV2 B__ D. C__'s testimony by causing him to make a tape falsely claiming he had loaned his vehicle to the applicant * Article 128 (Assault) – unlawfully striking PV2 B__ D. C__ with his hands and fists (2) The military judge sentenced him to confinement for 3 months, forfeiture of $220 per month for 4 months, and a bad conduct discharge. On 7 March 1977, the special court-martial convening authority approved the sentence; in addition, he directed the forfeitures be applied to pay becoming due on or after 7 March 1977. Pending completion of the appellate review, the applicant was ordered into confinement at Fort Lewis. d. On 21 April 1977, the applicant accepted NJP for wrongful possession of marijuana. e. On 12 May 1977, the U.S. Army Court of Military Review affirmed both the approved findings of guilt and the sentence; this was based on its determination they were correct in law and in fact. f. On 13 September 1977, a special court-martial order announced the completion of the appellate review and ordered the sentence duly executed; the order noted the applicant had already served the confinement portion of his sentence. g. On 29 September 1977, the applicant was separated with a bad conduct discharge under other than honorable conditions; his DD Form 214, as amended by a DD Form 215 (Correction to DD Form 214), shows he completed 1 year, 7 months, and 9 days of his 3-year enlistment contract, with 80 days of lost time. He was awarded or authorized the following: "ExpQualBad" and "MkmQualBad." 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board has is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 5. The applicant essentially asserts his counsel did not represent him properly, in that counsel should have offered him the opportunity to request separation for the good of the service, in lieu of trial by court-martial. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After reviewing the application and all supporting evidence, the Board determined that no relief, other than the administrative correction outlined below, was warranted. Based upon the administrative notes found by the analyst of record, the applicant is authorized the Expert Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). However, After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief of the discharge upgrade. 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 insufficient evidence of error, injustice, or inequity; the applicant’s numerous instances of misconduct were unmitigated. The Board agreed that the applicant’s discharge characterization is appropriate and proper. 2. 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: Other than the administrative notes annotated by the Analyst of Record (below the signature), the Board determined 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 otherwise 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. As a result, amend his DD Form 214, ending 20 September 1977, by deleting the entries showing "ExpQualBad" and "MkmQualBad," and replacing them with “Expert Marksmanship Qualification Badge with Grenade Bar” and “Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)”. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. b. Paragraph 1-9e (General Discharge), stated a general discharge is a separation from the Army under honorable conditions. It was issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11 (Dishonorable and Bad Conduct Discharges) outlined the steps to be taken for the separation of Soldiers who had been convicted by courts-martial and for whom the punishment included a punitive discharge. Paragraph 11-2 (DD Form 259A (Bad Conduct Discharge)) stated a member was to be given a bad conduct discharge only pursuant to an approved sentence of a general or special court-martial, following the completion of an appellate review, and after such affirmed sentence had 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 a 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 on the basis of 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, 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) AR20190000358 6 1