ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190003689 APPLICANT REQUESTS: The applicant requests an upgrade of his general, under honorable conditions discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Letters of Appreciation and Commendation FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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: a. His entire record was not reviewed, and the decision violated Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He therefore submits that his entire record should have been considered before a decision was made on the type of discharge given to him. b. He was given a general, under honorable conditions discharge solely because he was given a general court-martial conviction in December 1972. AR 635-200, paragraph 1-9(d)(3) provides that a general court-martial does not preclude a person from receiving an honorable discharge if the offense was not to serious, where the person's service has been honest and faithful over a greater period of time. c. He has attached documents showing that his conduct and efficiency has always rated good or excellent, and that he did not accrue any bad time during his enlistment. He has also enclosed various letters of appreciation and commendation. He calls the Board’s attention to the sentence adjudged at his court-martial. Since the court did not confine him or give him a punitive discharge, it should be concluded that they did not consider these offenses as being "serious or severe". d. He calls the Board’s attention to item 42 on his DA Form 20 (Enlisted Qualification Record). No mention of his past record was made there. Only the decision to give him a general discharge solely because of the court-martial. He respectfully requests that his discharge be changed to an honorable discharge. 3. On 4 January 1971, he enlisted in the Regular Army for a period of 2 years. He completed training requirements and was awarded military occupational specialty 95B (Military Policeman). 4. Item 42 (Remarks) of the applicant’s DA Form 20 states he was convicted by a general court-martial. It was determined that he be given a general, under honorable conditions discharge under the provisions of AR 635-200, chapter 2, separation program number (SPN) 21L (separation for good and sufficient reason when determined by secretarial authority). Second lieutenant LDW, Chief of the Enlisted Branch Transfer Station, Fort Dix, NJ, authenticated the remarks. His Record of Court Martial Conviction shows on or about 28 August 1972, he did commit an indecent, lewd and lascivious action by attempting sexual intercourse in a public area and was derelict in the performance of a his military police willfully failed to report to his station by radio the odometer reading and the time when said female passenger was picked up. 5. His record contains DA Forms 268 (Report for Suspension of Favorable Personnel Actions) dated 30 August 1972 that shows the applicant was flagged for an alleged rape, Article 32 investigation (not available) and a pending court-martial. 6. On 27 November 1972, a medical examination for the purpose of expiration of term of service physical shows the applicant was medically qualified for separation. 7. On 29 December 1972, the applicant was tried and convicted by a general court- martial. a. He was found guilty of wrongfully committing an indecent lewd and lascivious act with a female by attempting sexual intercourse with her in a public area. b. He pled guilty and was found guilty of being derelict in the performance of his military police duties in that he picked up a female passenger in his patrol vehicle and willfully failed to report to his station by radio the odometer reading and the time when said female passenger was picked up and willfully transported said female passenger to a remote area of Kuhberg Hill [in Germany] for the purpose of engaging in sexual intercourse. c. His sentence consisted of a reduction to the pay grade of private/E-2, to perform hard labor without confinement for a period of 6 months, and forfeiture of $100.00 pay per month for a period of 6 months. 8. On 7 February 1973, only so much of the sentence as provides for hard labor without confinement for 3 months and forfeiture of $100.00 pay per month for three months was approved and would be duly executed. The record of trial was forwarded for action under Article 69. 9. On 13 February 1973, Special Orders Number 44 reassigned the applicant to the transfer station at Fort Dix, NJ, for separation processing. 10. On 2 March 1973, the commander of Headquarters Company, U.S. Army Personnel Center, Fort Dix, NJ, recommended the applicant be issued a General Discharge Certificate. The commander cited section III of AR 635-200 and indicated the applicant’s conduct and efficiency rating was unknown. The applicant had been assigned for less than 30 days. 11. On 5 March 1973, the applicant was discharged in the rank/grade of private/E-2 under the provisions of chapter 2, AR 635-200, by reason of secretarial authority, under honorable conditions. The DD Form 214 he was issued shows a SPN of 21L. He completed 2 years, 2 months and 2 days of net active service and was retained in service for 62 days for the convenience of the government. He was not awarded a personal decoration. 12. In support of his case, the applicant provided letters of appreciation and commendation from the Division Chaplain and his battalion and company commanders, stating in part: a. Their appreciation for the time the applicant had spent with the children on 23 June 1971 at the Vacation Church School. The impressions he left these children will help them realize that the Military Police are one of their friends, and here to help them. His attitude and cheerfulness underlined the lessons taught during school. They sincerely appreciated the applicant’s contribution. His actions had brought high esteem for himself and the Military Police Corps. b. The calmness, sureness and high degree of professionalism with which the applicant approached a tentatively explosive situation resulted in the reduction of tensions and the return to normal of a disciplinary situation at Camp Pieri Barracks. His professional performance of his duties had brought just credit to himself and to the battalion and is a credit to the Military Police Corps and the Military Service. 13. 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. This regulation states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 14. Army Regulation 635-200, then in effect, states in: a. Paragraph 1-9d(1), an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9d(2), a member’s service will be characterized as honorable by the commanding officer authorized to take such action or higher authority when a member is eligible for or subject to separation and it has been determined that he merits an honorable discharge under the following standards: * has conduct ratings of at least “good” * has efficiency ratings of at least “fair” * has not been convicted by a general court-martial * has not been convicted more than once by a special court-martial c. Paragraph 1-9d(3), an honorable discharge may be furnished when disqualifying entries in the individual’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial and when, in the opinion of the office effecting discharge these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge would have been granted had the conviction not occurred, an honorable discharge may be awarded. 16. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade request. The Board considered the applicant’s statement, his record of service to include letters of appreciation/commendation, his MOS, the serious nature of his misconduct, chain of command recommendations and whether to apply clemency. The Board found no evidence provided by the applicant of post-service achievements or letters of reference in support of a clemency determination. After a thorough review, the Board found insufficient evidence of mitigating factors to overcome the misconduct and determined that the character of service he received at discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, 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. X X CHAIRPERSON 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 Army Board for Correction of Military Records (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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. This regulation states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides the authority for separation of enlisted personnel and stated in: a. Paragraph 1-9d(1), an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9d(2), a member’s service will be characterized as honorable by the commanding officer authorized to take such action or higher authority when a member is eligible for or subject to separation and it has been determined that he merits an honorable discharge under the following standards: * has conduct ratings of at least “good” * has efficiency ratings of at least “fair” * has not been convicted by a general court-martial * has not been convicted more than once by a special court-martial c. Paragraph 1-9d(3), an honorable discharge may be furnished when disqualifying entries in the individual’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial and when, in the opinion of the office effecting discharge these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge would have been granted had the conviction not occurred, an honorable discharge may be awarded. 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 (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. 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, 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. 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.