ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20190003906 APPLICANT REQUESTS: The applicant requests reconsideration of his previous request to upgrade his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 27 May 1968 * Lewis County Senior Citizens Center Use and Disclosure of Protected Health Information 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 AR2000047995 on 11 January 2001. 2. The applicant states it has been 51 years since his discharge. He has been a good outstanding citizen and would be honored to go to a Department of Veterans Affairs (VA) Facility. 3. On 14 April 1964, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 3 years. After completing initial entry training, he was assigned to an overseas assignment in Germany. 4. The record shows he accepted nonjudicial punishment (NJP) on: * 3 June 1965 for failing to obey a lawful order from a commissioned officer * 20 June 1966 for being absent without authority from his unit from 0130 hours, 19 June 1966 and remained absent until 1330 hours, 19 June 1966 * 21 June 1966 for willfully disobeying a direct order from his superior officer * 27 August 1966 for being absent without authority from his unit from 1900 hours, 26 August 1966 and remained absent until 0615 hours, 27 August 1966 5. On 26 September 1966, the applicant was convicted by special court-martial for one specification of breaking restriction. He was sentenced to confinement at hard labor for one month and forfeiture of pay for one month. On 30 September 1966, the convening authority approved the sentence and ordered it executed. On 25 October 1966, the convening authority set aside a portion of the forfeiture. 6. On 4 May 1967, the applicant was convicted by special court-martial: a. He was found guilty of one specification each of: * failing to go at the time prescribed to his appointed place of duty * willfully disobeying a lawful command from a military police duty officer * willfully disobeying a lawful order from his superior noncommissioned officer (NCO) * being disrespectful in language towards a military police duty officer by using profane and loud language towards him b. He was sentenced to confinement for three months and forfeiture of pay for three months. On 5 May 1967, the convening authority approved the sentence and ordered it executed. On 1 June 1967, the convening authority suspended the unexecuted portion of the sentence to confinement until 4 August 1967. On 2 June 1967, the suspended portion of the sentence to confinement was vacated and ordered executed. 7. On 8 November 1967, the applicant was convicted by general court-martial: a. He was found guilty of one specification each of: * unlawfully entering a building with the intent to commit a criminal offense therein * being AWOL from 15 September 1967 and remained absent until 18 September 1967 * escaping from lawful confinement in Dachau, Germany b. He was sentenced to reduction to private one (PV1)/E-1, confinement at hard labor for three years, forfeiture of all pay and allowances, and to be dishonorably discharged from the service. On 27 December 1967, the Staff Judge Advocate (SJA) completed a review of the case. The review included the applicant’s personal information, maximum sentence, adjudged sentence, charges, summary of the evidence, discussion of the case, the SJA’s opinion, clemency, and the SJA’s recommendation. On the same date the convening authority approved the sentence. c. On 11 January 1968, the Board of Review affirmed the findings of guilty and the sentence. On 3 May 1968, the U.S. Army Court of Military Appeals denied the applicant’s petition to grant a review of his case. On 10 May 1968, the convening authority ordered the sentence executed. 8. His enlisted qualification record shows he was awarded or authorized: * Army of Occupation Medal * Rifle Marksman Marksmanship Qualification Badge * Hand Grenade First Class Marksmanship Qualification Badge * National Defense Service Medal 9. On 27 May 1968, the applicant was dishonorably discharged under Army Regulation (AR) 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharges), paragraph 1a. He completed 3 years and 24 days of total active service with 2 years, 8 months, and 4 days of Foreign Service. His DD Form 214 shows: * Item 24 (Decorations Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized: NA * Item 30 (Remarks): 25 days lost under Title 10, U.S. Code 972 from 26 September 1966-20 October 1966 10. On 24 July 1968, the Army and Air Force Clemency and Parole Board disapproved clemency regarding the applicant’s confinement, but substituted his dishonorable discharge for a bad conduct discharge. 11. His reissued DD Form 214 shows in: * Item 13a (Character of Service): Under Conditions Other Than Honorable * Item 13b (Type of Certificate Issued): DD Form 259A [Bad Conduct] * Item 24 (Decorations Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized: NA * Item 30 (Remarks): Item 13a-This character of discharge substituted by the Secretary of the Army for good cause and by authority of Article 74(b) UCMJ (Uniform Code of Military Justice) 12. On 15 August 1969, the unexecuted portion of the applicant’s sentence to confinement was remitted, effective 12 December 1969. 13. On 29 January 2001, the Army Board for Correction of Military Records (ABCMR) denied the applicant’s petition to upgrade his bad conduct discharge; the Board determining that the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. 14. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 27 May 1968, showing his character of service as under conditions other than honorable and he was issued a Bad Conduct Certificate * Lewis County Senior Citizens Center Use and Disclosure of Protected Health Information detailing the procedures which will be conducted to protect protected health information (PHI) 15. The applicant states it has been 51 years since his discharge. He has been a good outstanding citizen and would be honored to go to a VA facility. The record shows he enlisted at the age of 17 years old, he accepted four NJPs, he was convicted by a two special courts-martial and one general court-martial, and he was AWOL for 25 days during this period of service. He served 36 months and 24 days of his 38 months contractual obligation. 16. AR 635-204 provided for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1a of this regulation stated that an enlisted person would be discharged with a dishonorable discharge pursuant only to an approved sentence of general court-martial and a bad conduct discharge based on an approved sentence of a general court-martial or a special court-martial imposing a bad conduct discharge. 17. AR 635-200 (Personnel Separations – Enlisted Personnel), provided a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: 18. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction but is empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 19. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD 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 requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the records of Courts-martial, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for the misconduct. The applicant made a statement, but provided no additional evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found 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: With the exception of the corrections stated in the Administrative Note(s) that follow, 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): A review of the applicant's record shows his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 27 May 1967, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons, Awarded or Authorized): * Army of Occupation Medal * Rifle Marksman Marksmanship Qualification Badge * Hand Grenade First Class Marksmanship Qualification Badge * National Defense Service Medal REFERENCES: 1. Army Regulation (AR) 635-204, in effect at the time, provided for separation of enlisted personnel with a dishonorable discharge pursuant to an approved sentence of a general court-martial. This regulation also provided for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial or a special court-martial imposing a bad conduct discharge. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the basic authority for separation of enlisted Soldiers. It stated a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was 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. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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.. 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. ABCMR Record of Proceedings (cont) AR20190003906 7 1