IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20190013759 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number RC83-07321. Specifically, he requests: a. His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge or an honorable discharge; and b. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 27 April 1977, to show his separation program designator (SPD) code as either "JFF" or "MFF" (by determination of service secretary) instead of "JJD" (as a result of court-martial). 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 10 May 2019 (referenced in legal brief as Enclosure 1) * Legal Brief, prepared by Tully Rinckey, PLLC, Attorneys and Counselors at Law, dated 1 August 2019 * Enclosure 2 – power of attorney letter * Enclosure 3 – DD Form 214, for the period ending 27 April 1977 * Enclosure 4 – personal statement * Enclosure 5 – two character reference statements * Enclosure 6 – letter of appreciation * Enclosure 7 – personal awards and certificates FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number RC83-07321 on 18 April 1984. 2. The applicant states he was treated differently than other Soldiers who committed the same offenses. He is eligible to receive an honorable discharge under Army regulations regardless of his conviction and sentence. With the passage of time, his conduct and contributions to the community as a civilian, which are demonstrative of his rehabilitative potential, are worthy of granting clemency. One mistake of misconduct should not continue to define his military service. 3. The applicant's counsel states: a. The applicant has created an impressive body of evidence over the last 40 years, justifying his request for clemency and a discharge upgrade. Suffering from the effects of alcoholism, he conspired with two other Soldiers to steal stereo equipment to satisfy his thirst for alcohol. His co-conspirators only received non-judicial punishment (NJP). He was sent to a court-martial, where he was tried, convicted, and sentenced. Upon his initial release from confinement, he struggled with alcoholism. He has now maintained over 32 years of sobriety. He worked for the same company for 37 years. He has opened his own small business. He is well known for his generosity, cooking for indigent people in his community. He has been a staple in his community, assisting the poor and raising money for various charities. Upon his sobriety, he has maintained a good relationship with his ex-wife and children and has had no involvement with law enforcement. It is respectfully requested that the Board recognize the contributions the applicant has made to his community in granting the aforementioned clemency and relief. b. This is the applicant's second attempt at a discharge upgrade. The current application is supported by new and material evidence including statements and articles concerning his charity work, which reflect his post-service humanitarian efforts. There are also new arguments being presented. 4. Counsel presents the following as facts: a. The applicant enlisted in the Army on or about 27 February 1973. He struggled with alcoholism during his active duty service. It did not normally interfere with his ability to perform his duties. He served honorably until his decision to assist two other Soldiers in stealing stereo equipment. The decision was directly related to his need for alcohol. His co-conspirators were both referred for Article 15s where they received NJP (Enclosure 4). His case was referred to court- martial without the opportunity for NJP. He was referred to court-martial, tried, convicted of larceny, and sentenced to confinement and a bad conduct discharge (BCD). b. Despite struggling with alcoholism, the applicant convinced an employer to give him a chance. He spent the next 37 years working his way up to Warehouse Manager and finally retiring as the Supervisor of Distribution (Enclosure 4). c. The applicant's alcohol consumption resulted in the loss of his marriage. He also received three Driving Under the Influence (DUI) citations; two in 1984 and one in 1987. Realizing all he had lost to alcohol, he quit drinking and has been sober for over 32 years. d. The applicant has been a full-time cook and small business owner since his retirement about five years ago. Since 2010, he has been providing food for the less fortunate in his community every holiday. Anyone in need can come to his restaurant and be provided a meal for free. He provides food for those who cannot afford groceries over the holidays. He is also a member of the Albany Social Club, which supports the boys and girls club with fundraisers, holiday gifts, and holiday meals. 5. Counsel presents the following for discussion: a. The applicant made one mistake. The applicant's referral to court-martial exposed him to greater punishment than non-judicial punishment would have. He committed a minor offense as defined by Article 15 of the Uniformed Code of Military Justice (UCMJ). Punitive discharges are not permitted under Article 15. The commanding officer could have elected to dispose of the offense under Article 15 without the intervention of court-martial. Even if a Soldier elects trial by court-martial, the nature of the offense does not change. Although a court-martial permits exposure to greater punishment, a commanding officer with integrity should not permit excessive punishment. If the commanding officer were the convening authority, he had a duty to disapprove any part of the sentence in excess of that which could have been awarded at an Article 15 hearing. The applicant had a right to be heard at court-martial. He also had a right to be treated fairly and equally regardless of the forum selected to hear the facts against him. b. An honorable characterization is warranted when the quality of a Soldier's service generally has met the standards of acceptable conduct and performance of duty. Conviction by a general court-martial does not automatically rule out the possibility of awarding an honorable discharge. The applicant's service was honorable up until his sole conviction. His conduct up until that point had been honest and faithful. An isolated incident should not define his entire Army service. The applicant has demonstrated the Army values since leaving the service. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides ample guidance for granting clemency by way of an honorable discharge. c. If the Board does not believe the applicant is deserving of an honorable discharge, the alternative is a general discharge. Per Army Regulation 635-200, a general discharge is appropriate when a Soldier's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The negative aspects of the applicant's career do not sufficiently outweigh the positive. d. Time is a mitigating factor. There has been a cultural shift and a better understanding of the human mind as it pertains to post-traumatic stress, substance abuse, sexual assault and so on. The Army was less tolerant of substance abuse in 1976. We were drawing down after the end of Vietnam and the Army could afford to be rigid and narrow minded towards its Soldiers. There was a stark contrast between the Army then and now; addiction was not understood, and early intervention was not in place. The military was not respected or cared for as it is today. We now treat our service members with the respect and dignity they deserve. When the applicant was not given a second chance, it was a reflection of the attitude of the country and the needs of the Army. e. The applicant was a victim of the vestiges of racism. Had he been a member of the majority, he would not have received the same punishment. With no record of previous misconduct, he was referred to court-martial. He was tried by a panel of all white men, convicted by a panel of all white men and sentenced by a panel of all white men. The sentence may have been legal but it was likely not without racial bias. There is nothing in his record that indicates he lacked rehabilitative potential. NJP is awarded with an eye toward rehabilitation. The applicant was singled out and not given that opportunity. He has proven, with the passage of time, that he had rehabilitative potential. f. Counsel concludes that but for one minor offense, the applicant served honestly and faithfully. His post service activities have been in keeping with the Army values. The culture of the Army has changed significantly since his conviction. He likely would not have faced the same discrimination and prejudice today. He would have been offered, like his co-defendants, an opportunity to have his case disposed of through nonjudicial punishment. There was nothing in his service record suggesting he lacked rehabilitative potential or deserved a punitive discharge. 6. Counsel provides: a. A personal statement from the applicant (Enclosure 4). The applicant details his employment and marital history. He also clarifies the events surrounding his discharge. He states he was doing a lot of drinking back then. He and two other Soldiers stole the stereo equipment and split the money. The other two Soldiers received NJP. He stated he was not guilty, so he was sent to court-martial. His commander later told him he should have been punished by NJP as well. He feels he was punished more severely because he said he was not guilty. He reiterates that his drinking did not affect his performance but it did have a negative impact on his personal life. He quit drinking in 1987 and has had a clean record since. He believes he is a good person, who enjoys helping those who cannot help themselves. b. Two character references (Enclosure 5) attesting to the applicant's philanthropy and community involvement. He is an advocate for the youth, elderly, and needy who will not see his community go without. He has a giving heart and is always looking for ways to quietly liven the spirits of his neighbors and those who are less fortunate. He is a generous, charitable, and outstanding human being. c. A letter of appreciation, dated 18 October 1974 (Enclosure 6), which was presented to the applicant for the superior performance of his duties from 3 March 1974 through 7 September 1974. d. Multiple awards and certificates (Enclosure 7), which verify the applicant's work ethic and community involvement. 7. The applicant enlisted in the Regular Army on 27 February 1973. Upon completion of his initial entry training, he was assigned to Fort Carson, CO. 8. Before a general court-martial on or about 28 October 1975, at Fort Carson, CO, the applicant was found guilty of stealing stereo equipment (personal property of another Soldier), of a value of about $350.00, on or about 22 February 1975. The court sentenced him to be reduced to the grade of E-1, to be confined at hard labor for two years, forfeiture of all pay and allowances, and separation from service with a bad conduct discharge (BCD). 9. The sentence was approved on 9 January 1976 and the record of trial was forwarded for appellate review. The U.S. Army Court of Military Review, on or about 26 November 1976, affirmed only so much of the sentence as provided for a BCD, confinement at hard labor for 18 months, forfeiture of all pay and allowances, and reduction to the grade of E-1. 10. The applicant's petition for a grant of review was denied on 5 April 1977 by the U.S Army Judiciary Office of the Judge Advocate. General Court-Martial Order Number 415, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 15 April 1977, noted that the applicant's sentence had been affirmed and ordered the sentence duly executed. 11. The applicant was discharged on 27 April 1977. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 11-2. His SPD code is shown as "JJD" (as a result of court-martial). He was issued a DD form 259A (BCD Certificate) and his service was characterized as UOTHC. 12. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 18 April 1984, determined he was properly discharged, and denied his request for relief. 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 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, court-martial proceedings and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board considered the applicant provided evidence of post-service achievements and letters of reference in support of a clemency determination. The Board found that the evidence provided was sufficient to support a clemency determination. Based on a preponderance of evidence, the Board determined that a correction of the character of service the applicant received upon separation and the reason for his separation was appropriate as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period ending 27 April 1977 as follows: - Item 9c. (Authority and Reason) – “Para 5, AR 635-200, SPD JFF” vice “Para 11- 2, AR 635-200, SPD JJD”, and; - Item 9e. (Character of Service) – “Under honorable conditions (General)” vice “Bad Conduct.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an upgrade to Honorable. 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, U.S. Code (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. Paragraph 5–3 (Secretarial plenary authority) states: (1) Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. (2) Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special HQDA directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. d. Paragraph 11-2 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) AR20190013759 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013759 8 ABCMR Record of Proceedings (cont) AR20190013759 7