IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20190005670 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge, or alternately to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 2 March 2019 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, in effect, that he is requesting an upgrade because of his failing health. He believes civilian health care does not give adequate care, due to uncertainties in the government. 3. The applicant enlisted in the Regular Army on 13 March 1973. 4. The applicant accepted non-judicial punishment on 14 September 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for not reporting to his appointed place of duty from on or about 0620 hours until on or about 1620 hours, 13 September 1970. His sentence included a reduction to the rank/grade of private/E-1. 5. Before a special court-martial on or about 3 November 1970, at Fort Hood, TX, the applicant was found guilty of wrongfully possessing one ounce, more or less of marijuana, on or about 20 August 1970. His sentenced was approved and ordered duly executed on 17 November 1970; and included a reduction to the rank/grade of private/E-1. 6. Before a special court-martial on or about 2 July 1971, at Fort Hood, TX, the applicant was found guilty of absenting himself from his unit without authority, from on or about 18 June 1971 through on or about 22 June 1971. His sentenced was approved and ordered duly executed on 2 July 1971, and included a forfeiture of pay. 7. Before a special court-martial on or about 30 August 1971, at Fort Hood, TX, the applicant was found guilty of stealing another Soldier’s car, on or about 16 June 1971. His sentenced was approved and ordered duly executed on 13 October 1971; and included confinement at hard labor for five months and separation from service with a BCD. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 8. Special Court-Martial Order Number 235, issued by Headquarters III Corps and Fort Hood, Fort Hood, TX on 9 December 1971, ordered the unexecuted portion of his sentence to five months of confinement at hard labor to be remitted. 9. The U.S. Army Court of Military Review affirmed the findings and sentence in the applicant's case on 24 April 1972. 10. Special Court-Martial Order Number 37, issued by Headquarters III Corps and Fort Hood, Fort Hood, TX on 12 June 1972, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 11. The applicant was discharged on 16 June 1972, pursuant to his court-martial sentence. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court-martial. His service was characterized as under other than honorable conditions (UOTHC). 12. 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. 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, regulatory requirements, 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 character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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. 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, in effect at the time, 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. c. Chapter 11 of the version in effect at the time provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 3. 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. 4. 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005670 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005670 5 ABCMR Record of Proceedings (cont) AR20190005670 4