ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190006591 APPLICANT REQUESTS: The applicant requests, in essence, an upgrade of his under other than honorable conditions (UOTHC) characterization in which he received a Bad Conduct Discharge Certificate. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 the original problem was never taken into account. One of the Soldiers in his unit overdosed on some type of drug. He found out where the Soldier obtained the drugs and confiscated all the drugs in their possession. He buried the drugs on Fort Meade, MD. The people started coming after him and may have had access to records. 3. On 20 April 1967, at the age of 19 years old, the applicant was inducted in the Army of the United States. On 3 January 1968, he was honorably discharged. On 4 January 1968, he enlisted in the Regular Army for a term of 6 years. 4. A report from the Federal Bureau of Investigation (FBI) indicated that on 10 July 1968, the applicant was arrested by civil authorities and charged with forgery. The final disposition of the case is unknown. 5. On 28 August 1969, the applicant was convicted by general court-martial of one specification of being absent without leave (AWOL) from 16 March 1968 and remaining absent until 26 March 1969. He was sentenced to forfeiture of pay for three months, and confinement at hard labor for three months. On 16 September 1969, the convening authority approved the sentence and ordered it executed; however, suspended the sentence of confinement for three months. 6. On 11 February 1972, the applicant was convicted by special court-martial of one specification of being AWOL from 8 December 1969 and remaining absent until 26 November 1971. He was sentenced to be discharged with a bad conduct discharge, confined at hard labor for five months, and forfeiture of pay for five months. On 24 February 1972, the convening authority approved the sentence. On 17 April 1972, after being affirmed, the sentence was ordered executed. 7. On 2 June 1972, the applicant was discharged accordingly. His service was characterized as UOTHC and he was issued a Bad Conduct Discharge Certificate, under Army Regulation (AR) 635-200, paragraph 11-1b. He completed 6 months and 1 day of net active service this period. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 1428 days lost under Title 10, United States Code, section 972. 8. The applicant states the original problem was never taken into account. One of the Soldiers in his unit overdosed on some type of drug. He found out where the Soldier obtained the drugs, confiscated all the drugs in their possession, and buried them. The people started coming after him and may have had access to records. His record shows he was inducted at the age of 19 years old, he was arrested by civil authorities for forgery, he was convicted by general court-martial for being AWOL, he was convicted by special court-martial for same offense, and he had 1428 lost days: 1096 days due to being AWOL and 332 days due to being confined. He served 6 months and 1 day of his 72 months contractual obligation. 9. AR 635-200 (Personnel Separations – Enlisted Personnel) states 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 discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 10. 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. 11. 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 regarding confiscating drugs, his civil conviction his extensive period of AWOL, the court-martial and whether to apply clemency. The Board found no in-service mitigation for his multiple instances of misconduct and the applicant provided no post-service achievements or letters of reference in support of a clemency determination. Based on the preponderance of evidence, the Board determined that the character of service he 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states 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 is a separation with honor. The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment or current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. 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. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. Chapter 11 (Dishonorable and Bad Conduct Discharge) 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 11-1b stated an enlisted person will be discharged with a bad conduct discharge pursuant only 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. 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 (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. 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, 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. 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) AR20190006591 4 1