IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220007188 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), dated 13 April 2022 * Self-authored statement * Digital Image: Wikipedia Article * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 16 March 1972 * DD Form 214, dated 9 April 1970 * DD Form 4 (Enlistment Contract), dated 10 April 1970 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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: a. His military assignment was to the computer section; his job was entering data cards into the processing computer for issuing reassignment orders. In addition, he received monthly data cards from the Army finance company, he printed the Army military personal paychecks. A manager of the Noncommissioned Officer’s (NCO) Club asked him if he could do him a favor. He had a friend who was waiting for reassignment orders and wanted to know if he could check and see if his orders had come through. This was in early 1971. He checked and the orders; had not come in. b. The manager asked if the applicant would help his friend be reassigned. He asked where his friend wanted to be reassigned. He said he was waiting for reassignment to Vietnam and that his military occupational specialty (MOS) was that of an NCO club manager. He knew the code to make data cards for reassignment and did what he was asked; considering the prevailing attitude of "just do what you're told." Over the next six months or so the manager requested an additional two NCOs be reassigned to Vietnam who had MOSs of an NCO club manager. He again followed his request. He knew what he had done was contrary to the military code of conduct but also, he thought that it was a small matter. c. The applicant planned on volunteering for Vietnam, "getting his ticket punched" for further promotion. His life fell apart, he was called to the Criminal Investigation Division and confronted with what he had done. He plead guilty to everything he was charged with including bribery even though he was never paid for anything. He did what he did as a favor. He knew what he had done was illegal and that no one forced him. He did it to help three men and did not have a clue as to the ramifications. 3. On 31 January 1968, the applicant enlisted in the Regular Army for 3 years. Upon completion of training, he was awarded MOS 71H (Personnel Specialist). He was honorably discharged on 9 April 1970, for immediate reenlistment. He was issued a DD Form 214 for this honorable period of service. 4. He was promoted to the rank/grade of specialist five/E-5 on 29 April 1969. 5. Before a general court-martial on 17 August 1971, at Fort Buckner, Okinawa, the applicant was found guilty of: * two specifications of: with the intent to defraud, utter a certain writing to receive payment for separate rations upon presentment of the said writing, on or about 10 November 1970 * one specification of: with the intent to defraud, utter a certain writing to receive partial pay upon presentment of the said writing, on or about 28 September 1970 * one specification of: with the intent to defraud, utter a certain writing to receive partial pay upon presentment of the said writing, on or about 10 November 1970 * two specifications of: wrongfully and unlawfully accepting $200 in compensation for services rendered on or about October 1970 * two specifications of: wrongfully and unlawfully accepting $200 in compensation for services rendered on or about 10 November 1970 * one specification of: wrongfully and unlawfully accepting $75 in compensation for services rendered on or about November 1970 6. The court sentenced the applicant to forfeiture of all pay and allowances, confinement at hard labor for two years, and discharge from the service with a bad conduct discharge (BCD). The sentence was approved on 17 September 1971; however, the period of confinement was not to exceed nine months. The record of trial was forwarded for appellate review. 7. The U.S. Army Court of Military Review affirmed the findings and sentence on 24 February 1972. 8. General Court-Martial Order Number 259, issued by Headquarters U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 7 March 1972, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 9. The applicant was discharged on 16 March 1972. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b, with Separation Program Number 292 (court- martial). His service was characterized as UOTHC. He was credited with 1 year, 4 months, and 7 days of net active service this period. 10. The applicant provides a digital image of a Wikipedia article that details a command sergeant major who was accused in a congressional inquiry of fraud and corruption related to the military club system. This image is provided in its entirety for the Board’s review within the supporting documents. 11. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 12. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, 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 three 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 three-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. The version in effect at the time provided that: 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. c. Chapter 11 provided that an enlisted person would be given a BCD 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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 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) AR20220007188 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1