ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  14 September 2020 DOCKET NUMBER:  AR20190015668 


APPLICANT REQUESTS:  The applicant requests an upgrade of his Bad Conduct Discharge (BCD) to general, under honorable conditions.   

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge)

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, he asked for a hardship discharge because of hismother working and having to support his two brothers.  His mother was having financialproblems.  He received orders to go to Vietnam and went absent without leave (AWOL)in order to help his mother support his brothers.  He has been in no trouble since beingreleased from active duty.

3.On 28 December 1965, the applicant, at the age of 20 years old, was inducted intothe Army of the United States.

4.On 14 September 1966, while in a training status, he accepted non-judicialpunishment under the provisions of Article 15 of the Uniform Code of Military Justice forvisiting an off-limits establishment and being AWOL from on or about 2100 hours
12 September to 0115 hours 13 September 1966.  His personnel qualification recordshows he completed training with conduct and efficiency ratings of excellent.

5.Upon completion of training, on 10 November 1966 he shows as Enroute to U.S.Army Pacific Command [Republic of Vietnam], however it does not show he reported.On 2 May 1967, he is shown as Dropped from Rolls (DFR- Deserter).

6.On 29 May 1967, the applicant was arraigned, tried, and convicted by special court-martial.  He plead guilty and was found guilty of being AWOL from on or about10 December 1966 to 2 May 1967.  He was sentenced to confinement at hard labor forfive months and reduction to pay grade E-1.

7.On 31 May 1967, his sentence was approved and ordered duly executed but theexecution of that portion thereof adjudging confinement at hard labor for five monthswas suspended for five months at which time, unless the suspension was soonervacated, the suspended portion of the sentence would be remitted without furtheraction.

8.On 11 April 1968, Special Court Martial Order Number 502 announced thesuspension of the applicant’s approved sentence to confinement at hard labor for fivemonths had been vacated and confirmed.  The unexecuted portion of the sentence toconfinement at hard labor was ordered duly executed.

9.On 18 April 1968, the applicant was arraigned, tried, and convicted by a generalcourt-martial.  He plead guilty and was found guilty of being AWOL from on or about24 July 1967 to 14 March 1968.  He was sentenced to be discharged from the Armywith a bad conduct discharge, forfeiture of $50.00 per month for six months, andconfinement at hard labor for six months.

10.On 3 May 1968, his sentence was approved.  The record of trial was forwarded toThe Judge Advocate General of the Army for review by a board of review.  Pendingcompletion of appellate review, the applicant would be confined in the United StatesDisciplinary Barracks, Fort Leavenworth, Kansas.

11.On 9 July 1968, after completion of post-trial and appellate review, General Court-Martial Order Number 747 announced the applicant’s sentence to a bad conductdischarge had been affirmed and ordered the sentence duly executed.

12.On 22 July 1968, the applicant was discharged as a result of court-martialconviction with an “under conditions other than honorable” character of service andissued a Bad Conduct Discharge Certificate.  He was discharged under the provisionsof paragraph 1b, Army Regulation 635-204 (Dishonorable and Bad ConductDischarges).  His DD Form 214 also shows he completed 1 year, 1 month, and 19 daysof net service this period.  He had lost time from 10 December 1966 to 1 May 1967; 3 to17 May 1967; 24 July to 27 December 1967; and lost time subsequent to normalexpiration term of service from 28 December 1967 to 14 May 1968; 15 to 22 May 1968;and 23 May to 22 July 1968.  The applicant was not awarded a personal decoration.

13.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process.  The Board has is not empowered to set aside a conviction, but is onlyempowered to change the severity of the sentence imposed in the court-martialprocess.  Army Regulation 635-204, in effect at the time, stated that an enlisted personwill be discharged with a BCD pursuant only to an approved sentence of a general orspecial court-martial.

14.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forththe basic authority for the separation of enlisted personnel.  The regulation states:

a.A general discharge is a separation from the Army under honorable conditions.  It







was issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. b.A member was to be given a bad conduct discharge only pursuant to anapproved 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. 15.In reaching its determination, the Board can consider the applicant's petition, hisservice record, and his statements in light of the published guidance on equity, injustice,or clemency.BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity.  The applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct.  The Board found the applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination.  Based on a preponderance of evidence, theBoard agreed that the applicant’s discharge characterization was not in error or unjust.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX 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. 


XCHAIRPERSON


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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process.  The Board has 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.   
 
3.  Army Regulation 635-204, in effect at the time, stated that an enlisted person will be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial. 
4.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the separation of enlisted personnel.  The regulation states:   
 
 a.  A general discharge is a separation from the Army under honorable conditions.  It was issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 b.  A member was to be given a bad conduct discharge only pursuant 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. 
 
5.  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.   
 
 a.  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.   
 
 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, 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.  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.     
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