IN THE CASE OF:   

BOARD DATE:  28 April 2020 

DOCKET NUMBER:  AR20190012630 


APPLICANT REQUESTS:  Through counsel, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC81-02374 on 16 September 1981.  Specifically, he requests his dishonorable discharge be upgraded to an under honorable conditions (general) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 12 September 2019

.self-authored statement, dated 5 September 2019

.Counsel's brief (4 page)

.Counsel submitted 127 pages of documents (of which 36 were duplicates):



.DD Form 4 (Enlistment Record – Armed Forces of the United States)

.orders for weapon qualification badges

.Military Occupational Specialty (MOS) Evaluation Data Report

.DA Forms 2627 (Summarized Record of Proceedings under Article 15,Uniform Code of Military Justice (UCMJ) (three)

.Federal Bureau of Investigation (FBI) charge record sheet

.General Court-Martial Orders Number 50, issued by Headquarters, 101stAirborne Division and Fort Campbell, Fort Campbell, KY on 13 May 1965

.General Court-Martial Orders Number 69, issued by Headquarters, 101stAirborne Division and Fort Campbell, Fort Campbell, KY on 1 July 1965

.DA Form 26 (Record of Court-Martial Conviction)

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge), for the period ending 31 August 1965

.DA Form 24 (Service Record)

.DA Form 20 (Enlisted Qualification Record)

.15 pages of service medical and dental records

.seven sets of administrative orders

.15 pages of general administrative service documents

.ABCMR decisional document AC81-02374


FACTS: 

1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAC81-02374 on 16 September 1981.

2.The applicant states he never signed or received any documents related to theincident that resulted in his discharge.  He has never been near the locations noted inthe charges and has never used a gun or knife for private use.  He was unwittinglyassociated with the robberies by just being in the wrong place at the wrong time.  Hehas never had an attorney represent him before and had no choice but to go along witheverything.

3.Counsel provides a four page brief, wherein he recites the applicant's preservice andmilitary history and describes the applicant's early misconduct as minor in nature andtypical of the poor and immature choices of a young and naïve Soldier.  Counselcontends:

a.The prior ABCMR decisional document provided an incorrect recitation of facts of









the incident and does not match the "vivid" recollections of the applicant.  b. The applicant voluntarily plead guilty to the charges before a court-martial that resulted in him being sentenced to separation with a dishonorable discharge, confinement for four years, and a reduction to the rank/grade of private/E-1.   c. In what counsel believes to be a pre-trial agreement, the applicant served approximately 90 days of his sentence and was discharged with a general discharge with an under other than honorable conditions "OTH" characterization. d. The reasons for the difference between the confirmed sentence and the OTHcharacterization has been lost to time as no records currently exist to explain the issue. However, for the past 54 years, Mr. N has been under the assumption that he received a dishonorable discharge when he left the military on 31 August 1965. e. In the intervening years and despite his belief he had received a dishonorable discharge, the applicant was steadily employed and a contributing member of society.  After his discharge, the applicant was employed as a machinist with S&E Machine Products.  In 1972 and until 1978, the applicant worked with Martin Marietta in Orlando, Florida.  From 1979 until 1989, he was an over-the-road truck driver, both independently and with several companies.  In 1989, after saving money for many years, he was able to purchase two rental properties holding 12 apartment units.   f. In a long-standing agreement with local religious and charitable organizations, the applicant was a landlord to the indigent providing stable and affordable housing to 
individuals and families in crisis.  In 1989, due to his age and health, he was forced to sell the properties and move to a more appropriate form of employment.   

g.He is married and has a son and three step-children (sons), whom he hassupported to the best of his ability since 1965. 

h.But for the minor military infractions for which the applicant received relativelyminor punishment given the nature of the military crimes, the applicant was a model Soldier.  He rose to the rank/grade of specialist four (SP4)/E-4 in less than 2-years.  He earned all of the combat-related badges and qualifications he was eligible to earn at that time in those two years. 

i.Given his immaturity and naiveté in 1965, his involuntary association with theindividuals who actually robbed the other hitchhiking Soldiers, it is more likely than not that the applicant was "railroaded" into his confession and guilty plea by the other Soldiers taking advantage of his immaturity and naiveté.  Unfortunately, the best evidence of what actually occurred and who said what to whom has been lost to time. We do know that the recitation of the facts by the ABCMR panel in September 1991 is incorrect.  For example, we know that the Panel confirms that the applicant received a Dishonorable Discharge, but we also know that the applicant received an under other than honorable conditions characterization.  We also know there was no independent review of the facts given the guilty pleas.  Thus, it is more likely than not that the applicant's memory is correct, in that he had no choice but to plead guilty under pressure from the others.  

j.Circumstantially, the applicant's life does not reveal that he had a propensitytoward violence - something that given the time in history, more likely than not, would have manifested itself in future crimes, arrests, and incarceration.  But, in fact, he has lived a crime-free life in the 50 years since his discharge: raising four children; holding steady employment in the defense industry; responsibly transporting goods across the United States for more than 10 years; and importantly to his disposition, owned and managed rental properties that he rented to the socially and economically disadvantaged.  This is not the life of a violent criminal.  

k.Counsel concludes that the applicant remembers that day vividly as it was theday that changed his life.  Without the ability to verify the Panel's facts against the actual record, we must rely on both the applicant's memory and the obvious factual inconsistencies in the record as evidence that he was a victim of circumstances not actions.  We must also rely on his life before his military service; his military service but for the alleged robbery; and, the fifty years since his discharge.  The applicant has lived a long crime-free life, contributing to the greater good of society through his service to the defense industry, commerce, his community, and most importantly his family.  There is nothing in his personality, as evidenced in his 74-years of life, which would indicate 
that he violently and with malice aforethought, robbed those Soldier(s) on 6 February 1965. Given the entirety of the facts and circumstances, it is more likely than not that the applicant did not commit the crimes of which he was accused, and his confession was involuntary.  Given the fact that the 1981 ABCMR Panel appears to reinforce the fact that he received a dishonorable discharge – a fact upon which he has relied for his entire life, and which was factually incorrect, the applicant deserves some relief, and upgrading his discharge to a general discharge with an honorable characterization, is appropriate given the very minor military infractions for which he was accused.  

4.A request for a reconsideration will be resubmitted to the Board if there is evidence(including but not limited to any facts or arguments as to why relief should be granted)that was not in the record at the time of the Board’s prior consideration.  The counsel'sallegations of a misrepresentation of the type of discharge the applicant received and animproper review by the prior ABCMR review panel constitutes a new argument.

5.The applicant enlisted in the Regular Army on 10 April 1962.  He entered active duty,completed basic, advanced individual, and basic airborne training and was awarded thebasic parachutist badge and marksmanship qualification badges with pistol and riflebars.  There is no evidence of combat service or his receipt of combat-related awards.

6.The applicant accepted nonjudicial punishment (NJP), under the provisions ofArticle 15 of the UCMJ, on the following dates for the indicated offenses:

.on 18 February 1963, for missing reveille and absenting himself from his unitfrom on or about 0545 hours until on or about 1745 hours on 11 February 1963,and for exceeding the pass radius limitations set forth in a Fort Campbell generalorder

.on 5 November 1963, for leaving the base without an authorized pass, on orabout 1936 hours 26 October 1963

.on 12 March 1964, for operating a vehicle with no post tags or insurance, on orabout 1053 hours 29 February 1964



7.Before a general court-martial on or about 23 March 1965, at Fort Campbell, KY, theapplicant was found guilty, in concert with in plea, of stealing cash and property fromtwo other Soldiers by means of force and violence and in concert with three otherSoldiers, on or about 6 February 1965.  The recommended sentence included hisforfeiture of all pay and allowances, confinement for a period of four years, reduction tothe lowest enlisted grade, and separation from service with a dishonorable discharge.

a.The General Court-Martial Convening Authority (GCMCA) approved a modifiedsentence that still included his separation from service with a dishonorable discharge.  
b.The GCMCA approved a reduced period the confinement to the lesser of eitherone year of confinement or the time required to complete the appellant review, whichever was earlier. 

c.The GCMCA further directed that the case be referred to the Judge AdvocateGeneral of the Army for review by the U.S. Army Board of Military Review and that the applicant be confined in the Post Stockade, Fort Campbell, KY pending completion of the appellate review. 

8.General Court-Martial Order Number 69, issued by Headquarters, 101st AirborneDivision and Fort Campbell, Fort Campbell, Kentucky on 1 July 1965, noted that thefindings and sentence in the applicant's court-martial had been affirmed and ordered theexecution of the applicant's dishonorable discharge.

9.The applicant was dishonorably discharged on 31 August 1965, in accordance withhis general court-martial sentence.  The DD Form 214 issued at that time provides thefollowing information:

.the applicant was discharged in the rank/grade of private/E-1

.the reason and authority for discharge is shown as Army Regulation 635-204(Enlisted Separations - Dishonorable or Bad Conduct Discharges)

.he received a separation program number of "292" (by reason of court-martialconviction)

.his character of service was "Under Other Than Honorable Conditions"

.he was issued a DD Form 260A (Dishonorable Discharge Certificate)



10.At the time of the applicant's service, the characterization of discharge shown on aDD Form 214 for a dishonorable discharge was either "under other than honorableconditions" or dishonorable.  The administrative discharge currently known as an underother than honorable conditions (UOTHC) did not exist at that time.

11.The ABCMR denied the applicant's request for an upgrade of his dishonorabledischarge on 16 September 1981.

12.Counsel's contentions relate to evidentiary and procedural matters that were finallyand conclusively adjudicated in the court-martial appellate process.  Further, it appearsthat counsel has failed to properly review the provisions of regulation, code, and entriesapplicable to the DD Form 214 that were in effect at the time of the applicant'sdischarge, prior to alleging the previous ABCMR decisional document was factuallyincorrect because, in Counsel's view, it misstated the type of discharge and containedother errors.

13.Court-Martial convictions stand as adjudged or modified by appeal through thejudicial process.  In accordance with Title 10, U.S. Code, Section 1552, the authorityunder 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 thecourt-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 thepunishment imposed.

14.The Board may consider the applicant's and counsel's statements in accordancewith the currently published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board carefully considered the counsel’s request on behalf of the applicant, 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, the reason for his separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for the serious misconduct.  The Board considered the statement by counsel regarding post-service achievements, but found no evidence of corroborating documents or letters of reference to support 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. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: XXX :XX :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 to amend the decision of the ABCMR set forth in Docket Number AC81-02374 on 16 September 1981. 

X CHAIRPERSON


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.Army Regulation 635-204, in effect at the time, set forth the basic authority forseparation of enlisted personnel due to a sentence for discharge by a court-martial.  Acharacterization of service of under other than under conditions discharge is normallyappropriate for a Soldier discharged under this regulation.

2.Army Regulation 635-200 (Active Duty Enlisted Administrative Separations),currently in effect, sets forth the basic authority for the separation of enlisted personnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 

c.An Soldier may be [administratively] discharged with an under other thanhonorable conditions discharge for misconduct consisting of one of the following: discreditable incidents involving civil or military authorities; or discreditable conduct and 
conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.   
 
 d.  A Soldier will be given a BCD/DD only pursuant to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence 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. 
 
//NOTHING FOLLOWS//