ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20190005423 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 21 March 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 19 July 1956 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 was having trouble with his wife and joined to get away from her. He lost his father when he got sick. 3. The applicant was inducted into the Army of the United States on 10 February 1954 and was honorably discharged for immediate reenlistment on 25 March 1954. He reenlisted in the Regular Army on 26 March 1954. 4. Before a special court-martial on 14 November 1955, at Fort Campbell, Kentucky, the applicant was found guilty of being absent without leave (AWOL) from on or about 8 October 1955 through on or about 26 October 1955. The court sentenced him to confinement at hard labor for three months and forfeiture of $25 pay per month for three months. 5. Before a general court-martial on 1 June 1956, at Fort Leonard Wood, Missouri, the applicant was found guilty of being AWOL from on or about 19 January 1956 through on or about 30 April 1956. The court sentenced him to be dishonorably discharged from the service, forfeiture of all pay and allowances, and confinement at hard labor for one year. 6. The sentence was approved on 8 June 1956 and the record of trial was forwarded to the Board of Review, United States Army, for appellate review. 7. The sentence and guilty findings were affirmed by appellate review on 20 June 1956. 8. General Court-Martial Order Number 491, issued by Headquarters, Fort Leavenworth, Kansas on 27 June 1956, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 9. The applicant was discharged on 21 August 1981. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations, Dishonorable and Bad Conduct Discharge), paragraph 1b. His service was characterized as bad conduct. 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination 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, the length and record of his service, the frequency and nature of his misconduct, the reason for his separation and whether clemency was warranted. The Board found insufficient evidence of in-service mitigating factors to overcome his misconduct and the applicant provided no 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. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), set forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. 3. Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 1(b) of the regulation provided, in pertinent part, that an enlisted person would be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge. The appellate review must be completed and the affirmed sentences ordered duly executed. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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. ABCMR Record of Proceedings (cont) AR20190005423 3 1