IN THE CASE OF: BOARD DATE: 6 November 2020 DOCKET NUMBER: AR20200000148 APPLICANT REQUESTS: correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show: * The correct spelling of his middle name * his rank/grade as specialist four (SP4)/E-4 instead of private first class (PFC)/E-3 * the Overseas Service Ribbon (OSR) * the Army Good Conduct Medal (AGCM) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * a self-authored statement * DD Form 214 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, in section 1552(b); however, the 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 Board will not consider a change to the applicant's middle name, as this item will be addressed through an administrative correction. 3. The applicant states, in effect: a. He developed a problem with alcohol due to being overworked during rioting in Okinawa, Japan. He did not receive any support and due to his alcoholism, he received nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ), which resulted in him being reduced in rank/grade from SP4/E-4 to PFC/E-3. b. Post-service, he acquired teaching credentials and a master's degree in social work. He subsequently obtained employment with Child Protective Services in Los Angeles County and later joined the California Youth Authority as a casework specialist/institutional parole agent. He honorably served the State of California for over 22 years. c. Upon his honorable release from active duty, he has worked extensively as a volunteer with antidrug and alcohol programs in the State of California as a speaker and president of a nonprofit corporation in the City of Pomona. 4. The applicant enlisted in the Regular Army on 27 March 1970. Evidence shows he served in Okinawa, Japan from 9 February 1972 to 20 March 1973. 5. Evidence shows he was found guilty by Special Court-Martial of wrongfully sitting down at his guard post on 9 August 1970. 6. Special Orders, issued by Headquarters, U.S. Army Ryukyu Islands on 26 April, shows the applicant was reduced in rank/grade from SP4/E-4 to PFC/E-3 effective 14 April 1972, due to misconduct. There is no evidence he was subsequently promoted to the rank/grade of SP4/E-4 prior to his release from active duty. 7. Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he failed to receive all "excellent" conduct and efficiency ratings throughout his service. 8. The applicant was honorably released from active duty on 21 March 1973, in the rank/grade of PFC/E-3. The DD Form 214 he received shows he was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Badge (M-16). There is no evidence he had an active Army status on or after 1 August 1981. 9. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. 10. The applicable regulation states the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. The enlisted person must have had all "excellent" conduct and efficiency ratings. 11. Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for award of the OSR for successful completion of overseas tours. The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an active Army status on or after 1 August 1981. 12. The applicant provided statements with his application that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. 2. The Board found the applicant’s middle name is obviously misspelled on his DD Form 214. The Board determined the DD Form 214 should be corrected to show his middle spelled as he states is correct in his self-authored statement. 3. The Board noted the applicant did not have an active Army status on or after 1 August 1981 and determined he is not eligible for retroactive award of the OSR. 4. The Board found insufficient evidence of mitigating factors that would support a recommendation to restore his rank/grade to SP4/E-4. The Board determined his reduction to PFC/E-3 was not in error or unjust. 5. The Board noted the applicant was convicted by a court-martial in 1970, was reduced in grade in 1972, and had one “good” conduct rating. Based on this evidence, the Board determined he did not meet the criteria for award of the AGCM. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : X :X 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 correcting his DD Form 214 to show his middle name as he states is correct in his self-authored statement to the Board. 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 any relief in excess of that described above. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 672-5-1 (Awards), in effect at the time, stated the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. The enlisted person must have had all “excellent” conduct and efficiency ratings. Ratings of “Unknown” for portions of the period under consideration were not disqualifying. Service school efficiency ratings based upon academic proficiency of at least “Good” rendered subsequent to 22 November were not disqualifying. There must have been no convictions by a court-martial. However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders. 3. Army Regulation 600-8-22 (Military Awards) states the OSR was established by the Secretary of the Army on 10 April 1981. Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours. The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981. Numerals are used to denote the second and subsequent awards of the OSR. 4. Army Regulation 27-10 (Military Justice), chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial. Paragraph 3-28 (Setting aside and restoration) provides that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. a. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15. In addition, the imposing commander or successor-in-command may set aside some or all of the findings in a particular case. If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. b. Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 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. 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. 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 based on 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. 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// ABCMR Record of Proceedings (cont) AR20200000148 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1