ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190007696 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to either an under honorable conditions (general) discharge or an uncharacterized discharge. He further requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 20 May 2019 * DD Form 214 (Report of Separation from Active Duty), for the period 28 June 1976 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 believes he did his time for misconduct while he was in the service. During this time, he made adolescent and misguided decisions. He is at the mercy of the board in receiving any benefits. He has noticed that in the news and in other informational sources, there are people with far worse separations than his and he believes there has been some unjust reviews. He is only seeking due diligence on his appeal for benefits. 3. The applicant enlisted in the Regular Army on 28 May 1974. 4. The applicant accepted nonjudicial punishment (NJP) on 30 April 1975, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful in language towards his superior noncommissioned officer (NCO) and for wrongfully using provoking words towards another NCO, on or about 27 April 1975, at Ledward Barracks, Schweinfurt, Germany. 5. The applicant accepted NJP on 29 July 1975, under the provisions of Article 15 of the UCMJ, for unlawfully striking an individual on the head with this hand and for being drunk and disorderly, on or about 19 July 1975, at Cave Disco Inn, Schweinfurt, Germany. 6. Before a special court-martial on or about 6 November 1975, at Schweinfurt, Germany, the applicant was tried and convicted of: * behaving with disrespect towards his superior commissioned officer, on or about 1 August 1975 * willfully disobeying a lawful order to halt, given by his superior commissioned officer, on or about 1 August 1975 * striking his superior NCO by hitting him in the chest with his hands, on or about 12 September 1975 * wrongfully using provoking words towards an NCO, on or about 12 September 1975 * being drunk and disorderly, on or about 1 August 1975 * wrongfully appropriating a wrist watch of a value of about $60.00, on or about 10 September 1975 7. The applicant's sentence included his separation from service with a BCD, six months of confinement at hard labor, and forfeiture of $240.00 pay per month for six months. The convening authority approved the sentence as adjudged. The record of trial was forwarded to The Judge Advocate of the Army for appellate review by the U.S. Army Court of Military Review. 8. Special Court-Martial Order Number 105, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 30 March 1976, restored the applicant to duty pending completion of appellate review. 9. The U.S. Army Court of Military Review affirmed the findings and sentence on or about 17 May 1976. 10. Special Court-Martial Order Number 30, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Kentucky on 11 June 1976, noted that the approved sentence had been finally affirmed and ordered the BCD executed. 11. The applicant was discharged on 28 June 1976, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11. His DD Form 214 shows his narrative reason for separation was "as a result of court- martial, other." He was discharged in the rank/grade of private/E-1 and was issued a DD Form 259A (BCD Certificate). 12. The Army Discharge Review Board determined that the type of discharge the applicant received was both proper and equitable on 10 November 1979. 13. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 14. 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, his record of service, the frequency and nature of his misconduct, his trial by court-martial and the reason for his separation. The Board found insufficient evidence of in-service mitigation for the 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. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 :XXX :XXX :XXX 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): N/A REFERENCES: 1. Title 10, U.S. Code, 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 sets forth the basic authority 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. c. An uncharacterized discharge merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. The service would be uncharacterized when Soldiers who were in an entry level status and, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty and demonstrated that they could not or would not adapt socially or emotionally to military life. d. Chapter 11 of the regulation in effect at the time states that a member 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. 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. 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. 5. Personal appearances before the ABCMR are by invitation of the Board only, and are not automatically scheduled at the applicant’s request. Personal appearances are scheduled only when the Board determines a personal appearance hearing is necessary. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190007696 5 1