IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006029 APPLICANT REQUESTS: upgrade of his characterization of service from under other than honorable (UOTHC) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 23 March 2023 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, in effect, while in his youth, due to his temporary lapse of judgment and conforming to peer pressure he made a mistake. He requests an honorable discharge because he served his time and has kept a clean record to present day. 3. The applicant enlisted in the Regular Army on 9 November 1972 for a 4-year period. He was awarded military occupational specialty 13A (Field Artillery Basic), the highest rank he attained was private first class (PFC)/E-3. 4. Before a general court-martial adjudged on 7 August 1974, the applicant was arraigned and tried for the following charge(s) and specification(s): a. Charge I, violating Article 121 of the Uniform Code of Military Justice (UCMJ), by stealing four government payroll checks on or about 14 March 1974, a total value of $619.00. b. Charge II, violating Article 123 of the UCMJ, with the intent to defraud, make a false signature as an endorsement to a certain military payroll check. c. He plead not guilty to all specification and charges. He was found guilty of stealing a government check of a value of $120.00, stealing a government check of a value of $98.00, for a total value of about $218.00, and guilty to charge II. d. He was sentenced to a bad conduct discharge, confinement at hard labor for 18 months, forfeiture of $175.00 per month for 18 months, and reduction to the grade of private (E-1). The sentence was and approved on 27 September 1974. 5. The available record is void of the appellate review. 6. General Court-Martial Order Number 467, issued by the Department of the Army, Headquarters U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 8 May 1975, ordered the sentence to be duly executed. 7. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 10 July 1975, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11 (Dishonorable and Bad Conduct Discharge), in the grade of E-1. His service was characterized as under other than honorable conditions. He was assigned separation program designator "JJD" and reentry code "3 and 3B". He was credited with 1 year, 10 months, and 1 day of net active service this period, with 301 days of lost time. 8. There is no indication the applicant applied to the Army Discharge Review Board within that Boards 15-year Statute of Limitations. 9. 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. 10. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 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. The Board noted the applicant provided insufficient evidence of post- service achievements or character letters of support that attest to his honorable conduct that might have mitigated the discharge characterization. 2. Furthermore, the Board found the applicant’s service record exhibits several instances of misconduct during his enlistment period of 1 year, 10 months, and 1 day of net active service this period, with 301 days of lost time 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 to an honorable discharge. Based on a preponderance of evidence, 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, 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. 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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 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. The service of Soldiers sentenced to a bad conduct discharge was to be characterized as under other than honorable conditions. 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/NR) 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230006029 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1