IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20220003091 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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, in effect, he is requesting an upgrade of his character of discharge. He feels the character of discharge was unjust. He feels the punishment did not fit the crime. He is seeking Department of Veteran Affairs (VA) medical and compensation for service-connected injuries. 3. The applicant's service records contain the following documents for the Board's consideration: a. DD Form 4 (Enlistment Contract - Armed Forces of the United States), which shows he enlisted in the Regular Army, on 7 November 1973, for a period of 3 years. b. DA Form 20 (Enlisted Qualification Record), which shows he entered basic combat training on 19 November 1973 and advanced individual training on 24 January 1974. c. Special Court-Martial Orders Number 27, published by Headquarters U.S. Army School/Training Center and Fort Gordon, dated 29 July 1974, which shows: (1) The applicant pled not guilty but was found guilty of assaulting two Soldiers. He was tried by Special Court-Martial on 12 June 1974. (2) His sentence included discharge from the service with a bad-conduct discharge, confinement at hard labor for 4 months, and forfeiture of pay. (3) The Convening Authority approved the sentence and forwarded the record of trial for appellate review. The applicant was confined in the United States Disciplinary Barracks, Fort Leavenworth, KS. d. U.S. Disciplinary Barracks Form 198 (Restoration Statement), which states the applicant wanted clemency if he could get it because he was not guilty of the offenses in which he was found guilty of. e. DD Form 214 (Report of Separation from Active Duty), which shows the applicant entered active duty on 7 November 1973 and was discharged on 8 January 1975 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 11-2. He had completed 9 months and 7 days of net active service this period. He was awarded the National Defense Service Medal. He was confined from 24 April 1974 through 15 September 1974. He was released on 16 September 1974 on excess leave pending completion of appellate review. His character of service was under other than honorable conditions. f. His service record was void of information regarding his appellate review. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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, USC, 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 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. c. Chapter 11 (Dishonorable and Bad Conduct Discharges) outlined the steps to be taken for the separation of Soldiers who had been convicted by courts-martial and for whom the punishment included a punitive discharge. Paragraph 11-2 (DD Form 259A (Bad Conduct Discharge)) stated 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. 3. 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 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. 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) AR20220003091 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1