IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220004514 APPLICANT REQUESTS: * change his character of service from bad conduct to honorable discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 26 January 2022 * Certificate of Accomplishment, 10 November 1964 * Special Orders Number 287, 30 November 1964 * State Board for Vocational Education, 2 December 1964 * Letter of Appreciation, 15 February 1965 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Business Automation and Management Diploma, 19 October 1965 * Wiring Operator, 19 October 1965 * Computer Programmer, 19 October 1965 * Altergo Software Education, Shadow II Course, undated * several letters * Certificate, SI SYCOR, Inc, Model 440 COBOL, 14 October 1976 * International Business Machine Corporation, Project Management Course, 21 December 1979 * Management Institute, Communication Skills for the Systems Analyst, 20 to 22 August 1980 * Hewlett Packard Computer Systems, Programmers Introduction, 17 September 1982 * Cullinet, Certificate of Attendance, 16 February 1988 * Fred Pryor Seminars, Project Management Course, 9 December 1988 * Landis and GYR, TQL Team Training, 8 July 1992 * Landis and GYR, TQL Team Performance, 14 April 1994 * Certificate of Accomplishment, Made BMS tear 2000 happen from design to development, 11 May 1998 * Cincom Systems, Inc Education Division, Data Base Management, Total Application Programming * Siemens Building Technologies, Inc, Managing Your Own Performance, 7 December 2001 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: a. After his release from the U.S. Disciplinary Barracks in Fort Leavenworth, KS, he was re-assigned to Headquarters, Headquarters Service Battery (HHSB), 5th Battalion, 32nd Artillery, in Fort Riley, KS. He welcomed this second chance to honorably fulfill his military obligation. He feels like it was an injustice that he served his punishment and still received a bad conduct discharge. He was punished twice for the same offense, and his discharge was predetermined prior to his release. The convening authority gave him a second chance to prove himself, which he did as stated in the enclosed letter from Second Lieutenant b. After his discharge he returned home and became a computer programmer. He worked for for years, and for 12 Years. He also worked for with the majority of his time employed with as a Principal Systems Analyst. After 28 years of service with the organization he retired on 8 January 2008. Since his retirement he became an, occasionally an to the precinct to which he is assigned. In addition, he also works as an. 3. On 28 February 1961, the applicant enlisted in the Regular Army. He completed training and he was awarded military occupational specialty 147.10 (Field Artillery Rocket Crewman). 4. On 13 August 1961, he was assigned to 22nd U.S. Army Missile Detachment, in Germany. 5. The Staff Judge Advocate’s Summary of the Evidence shows, in part: a. On 27 November 1963, the [applicant], Specialist, a British soldier, after meeting by chance at a service cinema, drove in the applicant’s automobile to a nearby town. There they visited three gashauses and in the last one, known as “Milo’s.” b. Gunner a British soldier testified that he and driver were in the latrine when the applicant tapped him on the shoulder and said he wanted to talk, and his manner indicated that there was going to be a fight. While and the applicant were alone in the latrine the applicant [asked] him about insulting him at a dance. Applicant refused to accept denial that he had not been at the dance and then told him he was going to teach you a lesson. While was about one and a half feet away from the accused and not going toward him, the applicant with an underhand thrust stabbed in the left side at about the waistline with a knife. sustained an abdominal wound which penetrated the stomach and involved the pancreas. could not recall whether he struck the applicant before the stabbing and believed he did not. The applicant assisted out of the latrine. c. On 28 November 1963, the applicant told his company commander that after he and went into the latrine denied that he was in the dance. Applicant told him that he did not have any argument with him. said, “Well I have something to settle with you.” He hit the accused on the chin with a punch ripped his jacket and knocked him against the wall. Neither the company commander nor the policeman, saw anything on the face of the applicant that would indicate he had been struck. d. Captain applicant’s commanding officer since May 1962, testified that the accused did his job well, was well thought of by the non-commissioned officer, was well behaved, and not a troublemaker. e. [Several NCO’s] who had supervised the applicant for periods ranging from seven months to two and a half years, testified that the applicant performed his duties in an excellent manner; he was a credit and value to the service; his reputation for being peaceful, law abiding and truthful was good; they would believe him under oath and were of the opinion that he should be retained in the service. f. It is submitted that the record of trial establishes beyond a reasonable doubt that the accused did not act in self-defense. On the night of dance the accused was so incensed that he repaired to an agreed upon place to engage in a fight with him. That time had not cooled his anger or weakened his resolution to any great extent, is demonstrated by his persistent tour of several bars. 6. On 13 February 1964, the applicant was convicted by a General Court-Martial of: * one specification of committing an assault on by cutting him in the abdomen with a dangerous weapon (knife) and thereby intentionally inflicting grievous bodily harm upon him * one specification of violating a general order by, without proper authorization, having in his possession a switchblade knife The court sentenced him to reduction to E-1, forfeiture of all pay and allowances, confinement for two years, and a dishonorable discharge. 7. On 3 April 1964, the convening authority approved so much of the sentence as provides for dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for one year and six months, and reduction to the grade of private is approved. The record of trial was forwarded to the appellate authority for appellate review. Pending completion of appellate review, the accused will be confined in the United States Army Disciplinary Barracks, Fort Leavenworth, KS. 8. On 25 September 1964, the Board of Review found the findings of guilty, and sentence as approved by proper authority correct in law and fact and having determined the basis of the entire record that the findings of guilty and only so much of the sentence as provided for bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for one year and reduction to the grade of private should be approved, the same as thus modified are hereby affirmed. 9. The applicant provides a Certificate of Accomplishment, dated 10 November 1964, for his completion of 688 hours in the field of general printing during his incarceration a Board for Vocational Education, 10. General Court-Martial Order Number 915, issued by Headquarters, Fort Leavenworth, KS, 23 November 1964, shows the sentence has been finally affirmed. That portion of the sentence extending to confinement has been served. [Applicant] is restored to duty pending completion of appellate review. 11. The applicant provides: a. Special Orders 287, issued by Headquarters, 1st Infantry Division, 30 November 1964, which shows in part, he was released from Fort Leavenworth, and assigned to HHSB 5th Battalion, 32nd Artillery with a report date of 21 January 1965. At the time his expired term of service was listed as 22 February 1965. b. A letter from the Director, of the State Board for Vocational Education, which shows, the applicant was commended for his worthiness and proved that he has the ability and courage to do a good job in his trade. c. A letter issued by HHSB, 5th Battalion, 32nd Artillery, Acting Commander, 15 February 1965, extending their appreciation for a job well done. 12. The applicant was discharged on 15 February 1965. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separation Dishonorable and Bad-Conduct Discharge), Separation Program Number (SPN) 292, as the result of a general court-martial, with the issuance of a under conditions other than honorable characterization of service and he was issued a Bad Conduct Discharge Certificate. He completed 2 years, 11 months, and 22 days of total active service. He had 92 days of lost time under Title 10, U.S. Code, section 9721 (28 November 1963 to 27 February 1964) and 269 days of lost time subsequent to ETS (28 February to 22 November 1964). 13. The applicant provides: a. Automation Institute Diploma which shows completion of Business automation and Management, Wiring Operator, and Computer Programmer, 19 October 1965. b. Altergo Software Education which shows completion of the technical course in Shadow II, undated. 14. A letter to the applicant’s congressman indicated on 8 February 1967, in ABCMR Docket Number [unknown], the Board reviewed the applicants records and record of trial by general court-martial and as a result of the review, no evidence was shown to indicate probable material error or injustice. His application was denied. 15. The applicant provides: a. A letter issued by, AMVETS National Headquarters Representative, 5 March 1968, which shows, after applicant was released from the disciplinary barracks, he was assigned to the Headquarters Service Battery 5th Battalion 32nd Artillery and served outstandingly; letters from his acting commander of the unit substantiate this. He also received letters from Automation Institute which show the makings of a good citizen. His punishment was out of proportion, he was attacked by a boxer, and acted in self- defense. b. A letter issued by 19 August 1970, commending the applicant on a programming job he did on their obsolete stock forms. c. A letter issued by, 16 April 1973, thanking the applicant for his efforts. d. A letter issued by, 4 May 1976, which shows, the applicant was employed by their, since 2 February 1968, with full knowledge of his bad conduct discharge from the military. He has proven to be a reliable, dependable, and great rapport with other employees. f. Si Sycor Certificate, which shows applicant’s completion of Model 440 COBOL, 14 October 1976. g. A certificate, which shows applicant’s completion of Project Management, 21 December 1979. h. Management Institute certificate, which shows his participation in communication skills for the systems analyst, during the period 20-22 August 1980. i. Hewlett-Packard Computer Systems certificate, which shows, the applicant’s completion of programmers introduction, 17 September 1982. j. Certificate of Attendance issued by Education Services, 16 February 1988. k. Fred Pryor Seminars, which shows, the applicant’s completion of Project Management, 9 December 1988. l. Landis and Gyr letter, 11 October 1989, which shows, they thanked him for work on changing the Marketing Screens for booking installed work. m. Landis and Gyr letter, which shows the applicant completed the training program TQL Team Training, and for outstanding TQL Team Performance. n. Several certificate of accomplishment for courses such as, Made BMS Year 2000 Happen from Design to Development and Made Oracle General Ledger Happen, 11 May 1998. o. Cincom Systems Incorporated certificate, which shows the applicant completed Data Base Management – Total Application Programming, undated. p. Several Siemens Building Technologies Incorporated certificate, which shows the applicant completed the Managing Your Own Performance, and Management Essentials courses. q. Certificate of Completion for outstanding participation in the Skokie Fire Department’s Citizens Fire Academy, 11 November 2008. r. Certificate of completion for outstanding participation in the Skokie Police Department’s Citizens Police Academy, 4 September to 20 November 2012. 15. By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a special or a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 16. 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. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. a. The applicant's trial by a general court-martial was warranted by the gravity of the offense charged (committing an assault with a dangerous weapon (knife) and violating a general order by having possession of a switchblade knife). His conviction and discharge were conducted in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. b. However, given that his conviction occurred over 50 years ago, and given the multiple letters of support, certificates of training and/or completion, and his post service support to Fire Departments(s) and/or Police Department(s), after reviewing the application and all supporting documents, the Board found that relief was warranted he in the form of an upgrade to his character of service to general based upon guidance for consideration of discharge upgrade requests. ? 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 reissuing the applicant’s the applicant a DD Form 214 for the period ending 15 February 1965 showing: * Characterization of Service: Under Honorable Conditions (General) * Separation Authority: No change * Separation Code: No change * Reentry (RE) Code: No change * Narrative Reason for Separation: No change 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 an honorable discharge. 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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. b. 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. 3. Army Regulation 635-204 (Personnel Separation Dishonorable and Bad-Conduct Discharge), states when authorized, a. An enlisted person will be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing dishonorable discharge. b. An enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad-conduct discharge. 4. 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military BCM/NRs and DRBs 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 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant’s do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004514 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1