ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190004963 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Diploma for Bachelor's Degree * Academic Transcripts * Four Certificates * Five letters of support 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 he does not believe his record is in error; he accepts full responsibility for the actions the led to his discharge. He submits the only evidence he has, which is proof of his desire to serve others by working hard for both Veterans and returning citizens. a. He acknowledges he created his situation and has no one to blame but himself; he made decisions to challenge the system and, in effect, confront racism. To this day, he continues to fight for equality, only now he does so by helping others and following the law so as to provide solutions. b. Nonetheless, he maintains he loves his country and was a good Soldier. He enlisted because he was willing to serve his country; he has dedicated his life to making his country better. 3. The applicant provides documentary evidence of his academic achievements, along with five letters of support. The letters of support attest to the applicant's integrity, honesty, compassion, and empathy in his dealings with others. 4. The applicant's service records show: a. He enlisted into the Regular Army for a 4-year term on 3 November 1972; he was 18 years old. Following initial training, orders assigned him to Fort Lewis, WA (his record does not reflect the date he arrived). Effective 13 April 1973, his chain of command promoted him to private first class (PFC)/E-3. b. Between May and July 1973, while assigned at Fort Lewis, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) three times: * 22 May 1973 – absenting himself without authority from a formation and an arms room detail, respectively * 5 June 1973 – absenting himself from company formation and physical training formation, respectively * 3 July 1973 – being absent without leave (AWOL) from 25 until 26 June 1973 (1 day); punishment included reduction from PFC/E-3 to private (PV2)/E-2 c. On 10 January 1974, a special court-martial, held at Fort Lewis, convicted him of UCMJ violations. (1) Consistent with his pleas, the court found him guilty of one specification of willfully disobeying the lawful order of a second lieutenant and one specification of being derelict in his duties by failing to secure his weapon while in the field. (2) The court sentenced him to 3 months confinement, forfeiture of $200 per month for 3 months, and reduction from PV2 to private (PV1)/E-1. (3) On 18 January 1974, the special court-martial convening authority approved only so much of the sentence as provided for 35 days confinement, forfeiture of $150 per month for 2 months (suspended for 6 months), and reduction to PV1/E-1. d. At some point prior to April 1974, he was reassigned to Fort Campbell, KY. On 3 May 1974, he accepted NJP for being AWOL from 22 until 26 April 1974 (4 days). e. On 20 May 1974, his Fort Campbell commander initiated bar to reenlistment action against him, citing his previous court-martial conviction and multiple NJP actions. On 21 May 1974, the applicant's battalion commander approved the bar to reenlistment. f. On 13 August 1974, a special court-martial, convened at Fort Campbell, convicted him of UCMJ violations. (1) Consistent with his pleas, the court convicted him of two specifications of AWOL (28 until 29 May 1974 (1 day) and 12 June until 13 July 1974 (31 days)). (2) The court sentenced him to 75 days confinement, forfeiture of $25 per month for 3 months, reduction to the lowest enlisted grade, and a bad conduct discharge. The applicant was confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS. (3) On 5 September 1974, the special court-martial convening authority approved the sentence, and directed the execution of all but the bad conduct discharge, which was pending appellate review. g. On 11 October 1974, because he had served his period of confinement at Fort Leavenworth, a special court-martial order restored the applicant to duty, pending the outcome of the appellate review. The applicant was reassigned to Fort Knox, KY and arrived on or about 15 November 1974. h. On 11 March 1975, he accepted NJP for being AWOL from 3 until 5 March 1975 (2 days). On 2 May 1975, he accepted NJP for failing to go to work formation. i. On 15 May 1975, the U.S. Court of Military Appeals granted the applicant's petition to review his case. j. On 8 June 1975, the applicant accepted NJP for two specifications of failing to go to his appointed place of duty. k. On 26 June 1975, the U.S. Court of Military Appeals found a prejudicial error had occurred in the staff judge advocate's post-trial review of the applicant's case; as such, the court set aside the applicant's court-martial, and mandated a new review and new action by a different staff judge advocate and convening authority. l. Special Court-Martial Order Number 94, dated 16 September 1974, issued by Headquarters, U.S. Army Armor Center and Fort Knox, showed the applicant was convicted on 13 August 1974 of two AWOL specifications, and was sentenced to a bad conduct discharge, confinement for 75 days, forfeiture of $25 per month for 3 months, and reduction to the lowest enlisted grade. The order stated that the previous action taken by the Fort Campbell convening authority was set aside, as a result of appellate review. The Fort Knox convening authority now approved the sentence; pending final appellate review, the applicant was to be retained at Fort Knox. m. On 22 December 1975, the U.S. Army Court of Military Review affirmed the findings of guilt and the sentence. n. On 21 January 1976, a special court-martial announced the completion of the appellate review and directed the execution of the applicant's bad conduct discharge. On 28 January 1976, he was discharged with a bad conduct discharge under other than honorable conditions. His DD Form 214 (Report of Separation from Active Duty) showed he had completed 2 years, 6 months, and 5 days of his 4-year enlistment, with 266 days of lost time. He was awarded or authorized the National Defense Service Medal. o. On 4 June 1976, he petitioned the Army Discharge Review Board (ADRB), requesting an upgrade to general under honorable conditions. While the applicant did not appear before the ADRB, he was represented by counsel at a hearing held on 22 November 1977. On 19 December 1977, the ADRB denied his appeal. 5. The applicant accepts responsibility for his misconduct, and offers evidence that he has turned his life around; he has earned a degree in Social Work, and serves as a substance abuse counselor. a. 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 only empowered to change the severity of the sentence imposed in the court-martial process. b. 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. 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, the frequency and nature of his misconduct, the multiple court-martial and NJPs, the bar to reenlistment, the reason for his separation and whether to apply clemency. The Board considered the applicant’s statement, post-service accomplishments and letters of recommendation in support of clemency. The Board found insufficient evidence or mitigation to overcome the multiple instances of misconduct that led to the applicant’s separation 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 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: 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 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. ABCMR Record of Proceedings (cont) AR20190004963 6 1