ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  6 July 2021 DOCKET NUMBER:  AR20210008269 


APPLICANT REQUESTS:  The applicant requests an upgrade of his characterization of service from under other than honorable conditions to general, under honorable conditions. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Report of Separation from Active Duty)



FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR AR20190008987 on 3 October 2019.

2.The applicant states the absent without leave (AWOL) dates listed on his DD Form214 did not occur as indicated on his DD Form 214.  He requests his discharge beconsidered as general, under honorable conditions, since he was unable to fulfill hisservice obligation.  He was incarcerated from “01/1976-03/2013” for a civilian matter.Due to his race he was incarcerated longer than necessary.

3.The applicant enlisted in the Regular Army on 23 July 1974 for 4 years.  Hecompleted advanced individual training, was awarded military occupational specialty(MOS) 16R (Vulcan Crewman).  On 26 November 1974, he was assigned to FortCampbell, KY, with duties in his MOS.

4.His DA Form 2-1 (Personnel Qualification Record (PQR)) shows he was AWOL from10 to 12 March 1975.

5.The applicant accepted nonjudicial punishment (NJP), under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ), on:

.8 July 1975, for unlawfully striking another Soldier in the face with his fist, on orabout 2 July 1975; his punishment consisted of a forfeiture of $50 pay, 7 days ofrestriction and extra duty, and reduction from pay grade E-3 to pay grade E-2(suspended for 60 days)

.8 December 1975, for being AWOL from on or about 29 November to


2 December 1975; his punishment consisted of a forfeiture of $25 pay, 14 daysof restriction and extra duty, and reduction from pay grade E-3 to pay grade E-2

6.On 11 December 1975, a bar to reenlistment was initiated against the applicant.  Theoffenses cited are the 8 July 1975, NJP listed above, the charge of theft of anautomobile on 3 March 1975, and for failing to return rental property in Nashville TN, on18 November 1975.

7.The applicant submitted an undated statement in his own behalf, wherein hecontended:

a.He encountered lots of things such as loud noises in the barracks, dope smoking,drinking, fighting, and misuse of other individuals' belongings.  He tried to get away from that environment by living off post.  He lived off post earlier and he was forced to return after a fight with another Soldier.  The platoon leader found out his wife was not with him; consequently, he was forced to move back to the barracks and everything he tried to rid himself of. 

b.He did not say anything because he did not want to be considered a tattle tell.
He tried coming in late at night after everyone was asleep, but instead, he came in and found "mustard" in his bed or his whole bed was gone.  He lied several times to keep peace with everyone and he sought certain freedoms he would have liked to have.  He covered up for others who wanted time off, but those same people would not cover for him.  He got busted and fined for being AWOL. 

c.Nobody really knew what was going on, so to keep the peace he just existed.  Hiscaptain did not believe anything that he said.  He received the first Article 15 because nobody would listen.  The day before he walked away from Private First Class (PFC) E, sort-of-like turning the other check.  He told him that he did not want to fight with him and got into his car and left.  The next morning at the regular work formation PVT E kept pushing and hitting him, so he turned and hit him back.  That was the first time he came face to face with the captain.  He tried to tell him what happened, but the captain did not listen due to a few things he had previously done.  He requested that he be reconsidered for reenlistment. 

8.On 16 January 1976, the bar to reenlistment was approved.

9.His PQR also shows he was AWOL from 13 March to 21 April 1975.  He wasarrested on 13 April 1975 by civil authorities in Birmingham, AL.  He was charged withgrand automobile theft.  He was extradited to Christian County Jail Hopkinsville, KY,and was released on bond on 22 April 1975 pending trial.

10.On or about 13 January 1976, the applicant was apprehended and confined by civilauthorities in Clarksville City Jail, Clarksville, TN, for rape, armed robbery, kidnapping,grand larceny, and assault and battery to commit murder in the 1st degree.

a.Bond was set at $185,000 and he had a court date of 4 June 1976.

b.On 4 June 1976, he was convicted and sentenced to serve not less than 6 yearsand not more than 10 years for grand larceny; not less than 4 years and not more than 10 years for kidnapping; not less than 6 years and not more than 21 years for assault and battery to commit murder in the first degree; not less than and not more than  
99 years for rape; and to serve life for the offense of armed robbery. 

11.On 20 October 1976, the immediate and intermediate commanders recommendedthe applicant for discharge, under the provisions of Army Regulation (AR) 635-206, formisconduct, due to conviction by civil court.  He acknowledged receipt of therecommendation, waived his rights, and elected not to submit a statement in his ownbehalf.  The separation authority approved the recommended discharge.

12.On 5 November 1976, the approval authority stated the applicant was appealing hiscivil conviction and discharge under the provisions of paragraphs 33a and 37a,
AR 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry,Conviction by Civil Court, and Absence Without Leave or Desertion), [due to convictionby civil authorities].  A DD Form 258A, Undesirable Discharge Certificate, would befurnished.

13.On 6 June 1977 and 1 August 1977, his appeals were denied.

14.Accordingly, on 12 October 1977, the applicant was discharged.  His DD Form 214shows he completed 1 year, 4 months, and 2 days of net active service this period, thisincludes no foreign service.  His awards are listed as the National Defense ServiceMedal and the Sharpshooter Marksmanship Qualification Badge Rifle (M-16).  His
DD Form 214 also shows in:

.Character of Service, “Under Other Than Honorable Conditions”

.Authority and Reason, “Paragraph 33a and 37a, AR 635-206,” SPD “JKB”[Misconduct-Conviction by Civil Court]

.Narrative Reason for Separation, “Entry Level Performance and Conduct”


.Remarks, 10 March 1975 – 21 April 1975, 18 November 1975 – 19 November1975, 29 April 1975 – 1 December 1975, 13 January 1976 – 12 October 1977



15.Orders 195-184, Headquarters, Fort Campbell, KY, dated 11 October 1977,confirms he was discharged, effective 12 October 1977.

16.AR 635-206 provided for the elimination of enlisted personnel for misconduct whenthey were initially convicted by civil authorities, or action was taken against them whichwas tantamount to a finding of guilty, for an offense for which the maximum penaltyunder the Uniform Code of Military Justice was death or confinement in excess of6 months.

17.The applicant contends the AWOL dates listed on his DD Form 214 did not occuras indicated on his DD Form 214.  He requests his discharge be considered as general,under honorable conditions, since he was unable to fulfill his service obligation.  He wasincarcerated from “01/1976-03/2013 [January 1976 to March 2013]” for a civilian matter.Due to his race he was incarcerated longer than necessary.

18.The applicant was convicted and sentenced to serve not less than 6 years and notmore than 10 years for grand larceny; not less than 4 years and not more than 10 yearsfor kidnapping; not less than 6 years and not more than 21 years for assault and batteryto commit murder in the first degree; not less than and not more than 99 years for rape,and to serve life for the offense of armed robbery.  As a result, he was discharged underthe provisions of AR 635-206, due to conviction by civil authorities, with an under otherthan honorable conditions discharge.

19.The applicant’s DD Form 214 shows lost time from 10 March 1975 – 21 April 1975,18 November 1975 – 19 November 1975, 29 April 1975 – 1 December 1975,
13 January 1976 – 12 October 1977.  There is no evidence available to show thesedates are incorrect.

20.Additionally, there is nothing in the available evidence to show he was treatedinappropriately/discriminated against or incarcerated longer than necessary due to hisrace.

21.AR 15-185 (Army Board for Correction of Military Records) provides that theABCMR begins its consideration of each case with the presumption of administrativeregularity.  The applicant has the burden of proving an error or injustice by apreponderance of the evidence.

22.In reaching its determination, the Board can consider the applicant's petition, hissubmissions, contentions, and his service record in light of the published guidance onequity, injustice, or clemency.
BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD 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 for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination.  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. 

After reviewing the application and all supporting documents, the Board found that relief was not warranted. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XX :XX :XX 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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.AR 15-185 prescribes the policies and procedures for correction of military recordsby the Secretary of the Army acting through the ABCMR.  The regulation provides thatthe ABCMR begins its consideration of each case with the presumption ofadministrative regularity.  The applicant has the burden of proving an error or injusticeby a preponderance of the evidence.

3.AR 635-206, in effect at that time, set forth the basic authority for the separation ofenlisted personnel due to misconduct (fraudulent entry, conviction by civil court, andabsence without leave or desertion).

a.Section IV provided members would be considered for discharge when it wasdetermined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 6 months; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, 
regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.  For discharge of members of Reserve components see section VII.   

b.Section VII provided that the administrative discharge of a member of theReserve components for cause, under conditions other than honorable, may be effected only pursuant to the approved findings of a board of officers convened by competent authority, except in those instances wherein the individual concerned consents to such discharge with waiver of board proceedings.  If discharge under these regulations is contemplated, an effort will be made to obtain the written consent of the reservist for waiver of board action, prior to complying with paragraph 34 (Appointment of Board of Officers), except in those cases where the individual is not under military control.  A board of officers will not be convened in any case wherein such written consent is obtained. 

c.Upon determination a Soldier is to be discharged from the service as undesirableunder these regulations, the authority accomplishing the discharge will, if the Soldier concerned is in a grade above private, E-1, reduce such Soldier to that grade without further administrative procedure and discharge the Soldier as private, E-1.  

3.AR 635-200 (Active Duty Enlisted Separations), currently in effect, sets forth thebasic authority for the separation of enlisted personnel.  It states in a case in which anUOTHC is authorized by regulation, a member may be awarded an honorable orgeneral discharge, if during the current enlistment period of obligated service he hasbeen awarded a personal decoration or if warranted by the particular circumstances of aspecific case.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 honorableconditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.An under other than honorable conditions discharge is an administrativeseparation from the Service under conditions other than honorable. 

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction of
Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.  
 
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