IN THE CASE OF: BOARD DATE: 6 March 2020 DOCKET NUMBER: AR20190005116 APPLICANT REQUESTS: The applicant requests an upgrade of his bad conduct discharge (BCD) to general or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 he went absent without leave (AWOL), because he was young, he lost his grandfather, and he did not return to his unit. After he was discharged he got his life together, got married, raised six children, and retired from Sherwin Williams after 34 years. If his request is granted it will help clean up his past. 3. At age 20, the applicant enlisted in the Regular Army, on 31 July 1965 for a 3-year term. On 20 December 1965, he was assigned to Fort Rucker AL, for advanced individual training. On 14 January 1966, he left his unit in a casual leave status and on 17 February 1966, he was dropped from Army rolls and was carried in a desertion status. 4. On 28 September 1966, in a written statement he acknowledged he was currently awaiting trial by general court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 86, due to being AWOL from 19 January to 21 July 1966. He also acknowledged: a. He had a full discussion with his defense counsel and had been advised of his rights and he was willing to plead guilty. b. If he was found guilty he was subject to the possible maximum punishment of a dishonorable discharge, total forfeitures, and confinement at hard labor for 1 year. c. In search of securing a more lenient sentence, he was freely and voluntarily offering to plead guilty to the charge and specification at his forthcoming trial, if the approved sentence shall not exceed a bad conduct discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 6 months. 5. On 3 October 1966, he pled guilty, and he was found guilty, and convicted by a general court-martial of one specification of being AWOL from 19 January to 21 July 1966. The court sentenced him to a bad conduct discharge, confinement at hard labor for 1 year, and a forfeiture of all pay and allowances. 6. The Staff Judge Advocate’s (SJA) Summary, dated 3 November 1966, shows the applicant submitted extenuating and mitigating circumstances in the form of verbal testimony and written affidavits. a. His unit commander and members of his chain of command testified that the applicant worked as a file clerk and he was a good worker. The unit commander stated that he was given a pass even though he was facing a general court-martial and he returned by Monday morning. Therefore, he demonstrated some good traits. b. In a unsworn statement the applicant indicated that he completed advanced individual training on 13 January 1966, and on 14 January 1966, he was given 5 days of emergency leave because of his grandfather’s death. The funeral was held in West Virginia and he stayed there with relatives for 12 days. Then he returned to Dallas, TX, to be with his mother, four younger brothers, and his sisters who were still going to school and living at home. His father had been dead since 1958 and his mother’s income was about $270 a month. While he was at home he worked to help support his family and he helped his mother manage her income. He was the oldest son and he felt a great sense of responsibility for his family’s welfare. His grandmother had passed away in October [1965] and then his grandfather passed away in January 1966, it was a great blow to him. He was not the type of person to run away from his problems. But since the death of his father and his mother’s ill heath presented a big emotional problem for him. He knew what he did was wrong and he requested leniency. c. In an Affidavit his mother stated, the applicant had always been a happy, truthful, and an understanding child, who had always helped her to support the younger children. His first job was at the age of 12, working nights at a fruit stand for $10 a week. In 1958 his father was murdered and since then his life had not been the same. He never seemed to care about school. He thought he should work and help her keep the children together. She did not know how she would have made it without his help. He had never been in trouble with the police, except for a few traffic tickets. The reason for his AWOL was he knew of the hard time she was having keeping a home for the children. She asked that the Army understand why he went AWOL and why she needed him at home. Without his help she just could not make it. d. Four additional Affidavits speak of how the applicant was always a polite, friendly, good hardworking person as a boy. His mother had five other children and since he had been gone his mother had a pretty hard time. The applicant had always helped his mother and they needed each other. 7. On 3 November 1966, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 6 months. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Board of Review. Pending completion of the appellate review the applicant was confined in the Post Stockade, Fort Hood, TX. 8. On 23 November 1966, the U.S. Army Board of Review affirmed the approved findings of guilty and the modified sentence. 9. General Court-Martial Order Number 66 issued by Headquarters III Corps, Fort Hood, dated 5 December 1966, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 10. The applicant underwent a medical examination and was determined qualified for separation. 11. On 19 December 1966, he was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-204 (Personnel Separations – Dishonorable and Bad – Conduct Discharges). He completed 6 months and 22 days of active service with 330 days of lost time. He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. His service was characterized as under conditions other than honorable and he was issued a Bad Conduct Discharge Certificate. 12. AR 635-204, in effect at the time, provided for separation of enlisted personnel with a BCD based on an approved sentence of a general court-martial or a special court- martial imposing a BCD. 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 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. 13. Regarding the applicant’s contention that he was young and immature when he went AWOL. Records show that he was 20 years of age at the time of enlistment. However, he took on a lot more responsibility than most others of his age. His mother depended on him and he tried to shoulder the responsibility of his family due to the death of his father. 14. His service record shows he was convicted of being AWOL from 19 January to 21 July 1966, as such, he was discharged due to a court adjudging a BCD. He completed 6 months of his 3 year obligation. In reaching its determination, the Board can consider the applicant’s petition and his service record, his age, and the responsibility that he assumed for his family in accordance with the published equity, injustice, or clemency guidance. 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 and the reason for his separation. The Board considered the statement at the time of his trial by both his chain of command and his family and his statement regarding post-service conduct. Based on those statements, the Board found sufficient evidence of in-service mitigation for the misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was too harsh and that a correction to his record was appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 19 December 1966 to reflect in item 13a. (Character of Service) – “Under honorable conditions (General)” vice “Under conditions other than honorable.” 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. 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 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 BCD based on an approved sentence of a general court-martial or a special court- martial imposing a BCD. 3. Army Regulation 635-200 provides for the separation of enlisted personnel. a. 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. 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. 4. 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 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005116 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005116 6 ABCMR Record of Proceedings (cont) AR20190005116 5