IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220011206 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions character of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 1 June 2022 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), 1 June 2022 * DD Form 214 (Report of Separation from Active Duty), 21 September 1977 * Department of Veteran Affairs letter, 1 April 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (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 applicant states he enlisted in the military on 18 November 1974 and served proudly with great conduct for 2 years, 3 months, and 27 days. He should only be punished for the days of misconduct. After 25 years justice has been served. 3. On 18 November 1974, the applicant enlisted in the Regular Army. 4. The applicant was still in basic combat training when, on 9 December 1974, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being drunk and disorderly on duty on 8 December 1974. His punishment consisted of 14 days of extra duty and 14 days of restriction (suspended); forfeiture of $80.00 pay for one month. 5. On 8 April 1975, the applicant was assigned to Company D, 704th Maintenance Battalion, in Fort Carson, CO. 6. He accepted NJP under Article 15, UCMJ – a. On 12 May 1975, for wrongful and falsely altering an identification card application on 6 May 1975. His punishment consisted of 5 days of extra duty; forfeiture of $80.00 pay (forfeiture of $40.00 is suspended until 12 July 1975). b. On 16 June 1975, for without authority failing to go at the time prescribed to his place of duty on 27 May, 5 June, 6 June, 11 June, and 12 June 1975. His punishment consisted of reduction to the grade of private/E-1; forfeiture of $80.00; and 14 days extra duty (6 days suspended until 16 August 1975). 7. He went absent without leave on 31 July 1975, and he remained absent until he returned to military control on 8 January 1976. 8. Special Court-Martial Order Number 62, issued by Headquarters, Fort Carson, 5 March 1976, shows a Court-Martial convened on 10 February 1976. The applicant was arraigned, tried, and convicted of the following - a. Charge I: Violation of the UCMJ, Article 86 – (1) Specification 1: in that the applicant did, on or about 9 July 1975, without authority absent himself from his unit, and did remain so absent until on or about 14 July 1975. (2) Specification 2: in that the applicant did on or about 31 July 1975, without authority absent himself from his unit, and did remain so absent until on or about 8 January 1976. b. Additional Charge: Violation of the UCMJ, Article 128 – (1) Specification 1: in that the applicant did on or about 3 July 1975, unlawfully strike Specialist on the head with a wine bottle. (2) Specification 2: in that the applicant did on or about 14 July 1975, unlawfully strike Private First Class on the side with a crutch. c. The court sentenced him to forfeiture of $150.00 pay per month for three months; to be confined at hard labor for three months; reduced to the grade of private/E-1; to be discharged from the Army with a bad conduct discharge. d. The sentence was adjudged on 10 February 1976. e. On 5 March 1976, the convening authority approved the sentence, but the unserved portion of the sentence to confinement at hard labor for three months was suspended until 10 August 1976, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence would be remitted without further action. The accused would be credited with having served confinement at hard labor from 10 February 1976 to date of this action. The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of appellate review, the accused was retained within the jurisdiction of the command. 9. On 27 August 1976, The Judge Advocate General affirmed the findings and the sentence as approved by the convening authority. The approved sentence adjudged on 10 February 1976 to Bad Conduct Discharge, forfeiture of $150.00 pay per month for three months, confinement at hard labor for three months (unserved confinement at hard labor suspended on 5 March 1976 until 10 August 1976 with provisions for automatic remission. Applicant credited with confinement at hard labor from 10 February 1976 to 5 March 1976), and reduction to the grade of private/E1 as promulgated in Special Court Martial Order Number 62, this headquarters, dated 5 March 1976, not subsequently modified, was affirmed pursuant to Article 66. The provisions of Article 71(c) having been complied with, the sentence will be duly executed, but execution of the sentence to forfeiture of $150.00 pay per month for three months was remitted effective this date. 10. His DD Form 214 show he was discharged on 21 September 1977, under the provisions of chapter 11 of AR 635-200 (Personnel Separations Enlisted Personnel), as a result of a duly reviewed and affirmed general court-martial conviction, with a under other than honorable conditions characterization of service. He had completed 2 years, 3 months, and 27 days of total active service. His DD Form 214 also shows: a. Separation Code JJD b. Reenlistment Code 4 c. 191 days lost under Title 10 USC 972 from 9 to 13 July 1975, 31 July to 7 January 1976, 10 February to 7 March 1976. 11. The applicant provides a Department of Veteran Affairs (VA) letter, 1 April 2022, that shows in part, the military has said the applicant’s service was not honorable. The VA has to make a decision about his service. If the decision is made that the applicant’s service was not “dishonorable,” he will be eligible for VA benefits. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation states, in pertinent part, that a member will be given a bad conduct discharge 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. 13. Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records 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 modify the severity of the punishment imposed. 14. There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year statute of limitations. 15. In reaching its determination, the Board can consider the applicant’s petition and his service record 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 that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. The ABCMR 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. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The applicant provided no post service achievements or letters of support that could attest to his honorable conduct for the Board to weigh as a clemency determination. 2. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. The Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. 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, 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or SPCM after completion of the appellate review and after such affirmed sentence has been ordered duly executed. a. 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. 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. 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011206 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1