ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  9 March 2020 DOCKET NUMBER:  AR20190014800 


APPLICANT REQUESTS:  in effect, that his bad conduct discharge (BCD) be upgraded to either an under honorable conditions (general) discharge or an honorable 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 20 June 2018

.Letter, Army Board for Correction of Military Records (ABCMR), dated10 October 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 ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file.

2.The applicant states some of the evidence surrounding his case is wrong.  He wouldlike to have the testimony of the cab driver from his court-martial.  He is unable to findthe disc that was sent to him.

3.The applicant enlisted in the Regular Army on 25 May 1964.  Upon completion of hisinitial entry training, he was assigned to the 3rd Infantry Division in Germany.

4.Before a general court-martial on or about 28 October 1965, at Headquarters, 3rdInfantry Division in the Federal Republic of Germany, the applicant was found guilty ofstealing, by means of putting a German National citizen in fear, 100 Deutsche Mark (ofa $25.00 value) and U.S. currency of a $7.00 value, on or about 21 August 1965.  Hissentence included confinement at hard labor for two years, forfeiture of all pay andallowances, reduction to private/E-1, and separation from service with a BCD.  Hissentence was approved on 18 December 1965 and the record of trial was forwarded tothe U.S. Army Board of Review for appellate review.

5.General Court-Martial Order Number 326, issued by Headquarters, FortLeavenworth, KS on 13 June 1966, noted that the applicant's sentence had been finallyaffirmed and ordered the remainder of his sentence to be duly executed.

6.The applicant was discharged on 27 June 1966.  The DD Form 214 he was issuedshows he was discharged under the provisions of Army Regulation 635-204 (PersonnelSeparations – Dishonorable and BCD), paragraph 1b.  His service was characterized asUOTHC.  His DD Form 214 shows he was issued a DD Form 259A (BCD Certificate).

7.An exhaustive search was undertaken to locate the applicant's military records.  Aphotocopy of his official military personnel file (OMPF) was provided from the NationalPersonnel Records Center on 6 September 2018.   There are no additional documentsavailable for review within the OMPF pertaining to the applicant's court-martial andsubsequent discharge.

8.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process.  In accordance with Title 10, USC, Section 1552, the authority underwhich 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-martialprocess and then only if clemency is determined to be appropriate.  Clemency is an actof mercy or instance of leniency to moderate the severity of the punishment imposed.

9.The Board should consider the applicant's statement, in accordance with thepublished 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 dischargeupgrade requests.  The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct his court-martial conviction and thereason for his separation.  The Board found insufficient evidence of in-service mitigationto overcome the applicant’s serious misconduct and the applicant provided no evidenceof post-service achievements or letters of reference in support of a clemencydetermination.  Based on a preponderance of evidence, the Board determined that thecharacter of service the applicant received upon separation was not in error or unjust.2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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. 



X 


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 (Personnel Separations – Enlisted Personnel), 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. 
 
3.  Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided that an enlisted person would be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.  The appellate review must be completed and the affirmed sentences ordered duly executed. 
 
4.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, USC, 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. 
 
5.  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//