IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150010200 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150010200 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 to amend the decision of the ABCMR set forth in Docket Number AR2040016656, dated 5 May 2015. _____________X____________ CHAIRPERSON 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. IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150010200 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. 2. The applicant states: a. President Carter issued an executive order granting him an amnesty. The Board makes assertions as if those assertions were the truth and then states he can submit any other evidence within 1 year when the Board itself does not have the evidence. He questions the point of that because the Board had already shown the decision it made was not based on any evidence whatsoever and acknowledges that the separation packet is not available. He firmly believes that the evidence was not and never was entered as to any civil criminal conviction in his military record. He also believes the packet is available and Board members know it but decided to lie about that factor because it proves him correct. b. The Record of Proceedings (ROP) makes the statement that "the offense is not identified, but it met the regulatory criteria of either carrying a penalty of death or more than 1 year of confinement." How can the Board assume that this met the regulatory criteria? This, in any court of law, would immediately cause any judge to order the Board to show proof. In fact the civilian offense was a minor offense, misdemeanor, which he will not identify since obviously the Board can't. The Board has no power or authority to assume anything about any fact not entered into evidence in any case, civilian or military. The rule of law applies and assumptions carry no legal weight whatsoever. Executive orders of the President carry greater weight and cannot be ignored on assumptions or exceptions applied on those same assumptions. c. The Board misstates his service record completely, obviously to make itself more believable. Further, the Board states that the Department of Veterans Affairs (VA) said they would upgrade his discharge. He said no such thing. Although he admits it may be subject to that assumption. Regular Army personnel heard his case at the VA and said that an upgrade would be granted because of the President's order. They didn't upgrade it but assumed, and rightly so that the Army was required to upgrade it. He received an unreadable copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). The Board can't prove, because "the discharge evidence packet is not available for review," any of the assertions it made to deny his upgrade; yet the Board assumes "it met regulatory requirements." d. The military is not above the law or rules of evidence in any case, any time. Assumptions are not allowed in any court, civilian or otherwise and again "regulatory requirements" were not and never have been the question. On page 5 of the ROP, the Board stated in part, "the evidence presented.... etc. and etc. " The Board admits that no evidence packet was available; so then, it was not presented and cannot be considered in any regard whatsoever. Nor can presumptions be made as to what it contained. Further if the officers in 1968 were correct or not is not relevant to an order that would come much later after his discharge. Because Army Regulation (AR) 635-206 existed at that time, 1968, this Board has no authority to assume it was followed as it is written. So to make this absurd ruling the Board assumes that AR 635-206 was correctly applied, that exception 2 in President Carter's order does not apply and, without having any information as to any civilian conviction, presumes it contained a penalty of over 1 year confinement. Further, knowing that he could not get a copy of his DD Form 214 for years, the Board admits that the discharge evidence packet is/was not available. The Board has no authority to default to the U.S. Army or any officer in any case. e. The ROP contains a moronic statement to say the least, as the Board admits they do not have any actual evidence to refer to and again, has no authority to default to the Army. The statement that "the available documentation clearly indicates the misconduct which led to his discharge rendered his service unsatisfactory" is not supported and again none of this documentation shows any stated reason/proof for his discharge and the Board has no authority to state that it does. His service record is irrelevant in any case and this Board has no authority to refer to it in any way. Also, his term of service was completely misstated, but that is, again, not relevant to anything here. Finally the Board determination states "the evidence presented does not demonstrate the existence of a probable error or injustice." In fact as the Board clearly states most of the evidence was never reviewed. Assumptions were made and then entered as if proven to make the case for this absurd ruling. So the Board invents a reason to disregard a direct order from President Carter. It presents no facts as to any civilian conviction yet presumes the "over a year" idea. The Board has no authority or constitutional right to default to the U.S. Army or any officer in any case. Nor does it have any right or authority to invent facts in any ruling. He cannot prove this but he believes firmly that no civilian record of any offense was ever entered in his case. Instead the officers at the time simply used AR 635-206 as if they could default to it as cause to discharge him. These officers had no idea that Jimmy Carter would even be president and certainly did not think at that time that anyone would ever question their procedure(s). f. The order from President Carter does not refer to nor allude to probable error or injustice. Again probable error or injustice is not relevant. President Carter's order is a direct order to the U.S. Army and all of the military and that order cannot be construed to mean he meant anything other than what the direct order states. Finally, he resents the Board making reference to any other factors as to his military record which have no legal effect because those factors have no bearing as to the reasons for his discharge. The Board certainly has no right to disregard a direct order of the President based on anything other than absolute facts, of which there are none. In fact, as that order reads the Army and other services are/were required to automatically upgrade all discharges that do not come under the 2 exceptions. That is exactly how that order reads. That order was not written to him or any other civilian, it was written to the United States military. g. He cannot be made to provide evidence or any information as the Board itself admits that evidence does not exist. Yet, the Board states that he can present evidence within one year. The Board made this ruling going into factors that have no bearing on this, further admits it had no real evidence and states "facts" that have no relevance whatsoever to the issue. The United States Constitution cannot be usurped by this Board nor does this Board have the authority to make any decision that violates his civil rights or, more importantly, violates a direct order from the Commander In Chief, which the Board has done and is doing by this diatribe it wrote. Nothing in the Board's ruling shows any factor that comes under exception 2 and that is the only issue this Board can consider, period. Anything else is a violation of the direct order, as it is written. Evidence cannot be proclaimed, invented, assumed, or otherwise made to be present. h. Most of the information in the diatribe he was sent has no bearing on this issue and, in fact, is an attempt to demonize him and put the burden on him to disprove a factor that this Board admits it has no proof of. He believes the Board outright lied about that factor to make this absurd diatribe seem as if it was written with proof. He should not have even been made to apply to this Board or any other part of the military to have a direct order of the President followed and carried out. The order directs the military to upgrade any and all discharges that do not come under the 2 exceptions, without anyone having to apply for that upgrade. The military cannot shift the burden to him in any case to prove the negative as to the decision nor can it decide any case without direct evidence. His discharge should have been upgraded by the military shortly after the order was issued or the military should have provided proof that an exception applied. That is exactly how the order reads as it is written. But then obviously Board members don't like the order so they write a pile of trash such as they did. i. What he was convicted of by a civil court was a misdemeanor which has a maximum penalty of one year confinement or less, probably less than a year maximum. He has no idea what Colorado law states but can assume that one year or less is the maximum penalty for any misdemeanor which is a standard across this country. And what the Uniform Code of Military Justice says is not relevant but can be safely assumed to read the same. He does not have to prove the negative in any case. But this Board does have to prove the positive which it has not. As he remembers it may not have even been a misdemeanor but a local ordinance violation. Also, the Board has no authority to deliberately confuse the words "arrested for," "charged with," or "convicted of," as the order clearly states convicted of. The order of President Carter was purposely written to exclude capital offenses from upgrades and not exclude minor offenses from upgrades. That is exactly what the order reads as written. And that is the only factor this Board should have considered in his case. In fact, the military, as the order is written, should have informed each and every person affected by the order that an upgrade would be issued or not issued and provided evidence in either case as to why the order or any exception (s) applied or didn't apply shortly after it was issued. Persons should not have even had to apply. The order was written to the military not to anyone else. j. Further, he believes that the military, in general, conspired to make certain records, such as his, unavailable so that he and others could not apply for any upgrade as to President Carter's direct order. He was told his DD Form 214 was misplaced, not in its place, or displaced for some unknown reason. When he contacted his Representative, he got a copy right away. His DD Form 214 should have been sent to the VA in Milwaukee as one of the requests was sent by the VA. He requested his DD Form 214 from St. Louis but never heard from them again. This factor proves to him and any normal thinking person that the idea was to never provide it. Now comes this Board to say that he can provide evidence as to this absurd ruling, yet state clearly they did not have any evidence in making their moronic decision. Instead, the Board went into factors that they had no right to go into in an attempt to justify their decision and try to demonize him further by doubting his word, of which he could not care less. Just so the Board knows, its word isn't worth the paper it is written on. Each of the Board members deserves to be charged with a crime as to this. Maybe he can get that done by filing a federal lawsuit against the Board. Each of the Board members think they can do or say anything and get away with it; that is quite obvious. He is going to ask his Representative to conduct an investigation into this and Board members will be made to answer as to this diatribe they wrote and hopefully those members will be court-martialed for what they did here. They all disobeyed a direct order of the President of the United States. k. He has more honor in his little finger then any of the Board members have in their entire bodies as do most judges in this country. Some folks call them "activist" judges; he calls them what they are, liars, some of the most dishonorable people in our country. He firmly believes that a "policy" was put in place to not provide DD Forms 214 to some former military members so that this Board could assert that "time limits" had run out, in an effort to disobey a direct order of the President so that people like him could not even know what was there. 3. The applicant does not provide any additional evidence. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140016656 on 5 May 2014. 2. The applicant provides a new argument which was not previously reviewed by the ABCMR. It warrants consideration by the Board. 3. The applicant's service records were not available for review: a. The National Personnel Records Center (NPRC) in St. Louis, MO, is the repository for millions of military personnel, health and medical records of discharged and deceased veterans of all services during the 20th century after World War I. It also houses civilian and other related records. b. When the Board receives an application for correction of records, the member's service records, also known as the DA Form 201 (Military Personnel Records Jacket) (or 201 File) is requested from NPRC. The 201 file contains the member's enlistment document, personnel documents (such as promotions and reductions orders, award orders, reassignment orders, separation orders), and a copy of the separation packet together with the DD Form 214. c. In the applicant's case, his DA Form 201 was requested from NPRC but could not be found. However, his DD Form 214 is sufficient evidence with which to address his request. The DD Form 214 is a summary of a Soldier's most recent period of continuous active service and provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. 4. The applicant's DD Form 214 shows he reenlisted in the Regular Army for a 6-year term on 16 June 1967. This form also shows at the time of his discharge he held military occupational specialty 63H (Automotive Repairman) and he was assigned to Fort Carson, CO. 5. His DD Form 214 also shows: a. He was discharged in the rank/grade of private/E-1 on 19 February 1968, under the provisions of AR 635-206 (Personnel Separations - Discharge Misconduct Fraudulent Entry, Conviction by Civil Court, Absent Without Leave (AWOL), Desertion). He was discharged by reason of conviction by a civil court and his Separation Program Number (SPN) is 284, which corresponds to “Misconduct/convicted or adjudged a juvenile offender by a civil court during current term of military service.? b. He completed 4 months and 15 days of net active service during the period covered by this DD Form 214. His periods of time lost are listed as 26 July to 2 September 1967, 18 September to 2 October 1967, 3 October to 11 October 1967, 28 to 30 October 1967, 31 October to 14 November 1967, 15 November to 22 December 1967, 27 to 29 January 1968, and 30 January to 18 February 1968, a total of 59 days. 6. There is no indication: * he petitioned the Army Discharge Review Board for a review of his discharge processing within that board's 15-year statute of limitations * he applied for clemency under the Presidential Proclamation 4313 or that he completed any alternative service * he was pardoned under President Carter's Presidential Proclamation 4483 7. On 5 May 2015, the Board denied his request for an upgrade of his discharge based on the fact that the evidence presented did not demonstrate the existence of a probable error or injustice. REFERENCES: 1. AR 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). Paragraph 33 stated members would be considered for discharge when it was determined 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 UCMJ was death or confinement in excess of 1 year; (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. 2. AR 635-5 (Personnel Separations - Separation Forms), in effect at the time, defines the SPN codes used on the DD Form 214. It states, for the SPN code 284, the authority is Army Regulation 635-206 and the reason is misconduct, convicted by a civil court during current term of active military service. 3. On 16 September 1974, President Gerald Ford issued Presidential Proclamation 4313, followed by Executive Order 11803, wherein he established a clemency board to review certain convictions under the Military Selective Service Act and the UCMJ. Those persons convicted under the UCMJ for Article 85 (Desertion), Article 86 (Absent without Leave), or Article 87 (Missing Movement) between 4 August 1964 to 28 March 1973 could have their cases reviewed by the clemency board and have clemency recommended. This clemency was conditional, however, upon completion of alternative service. 4. On 21 January 1977, President Jimmy Carter issued Presidential Proclamation 4483, followed by Executive Order 11967, wherein he granted a full and unconditional pardon to all persons who committed any offense between 4 August 1964 and 28 March 1973 in violation of the Military Selective Service Act. Excluded were those who were convicted under the UCMJ for Article 85 (Desertion), Article 86 (Absent without Leave), or Article 87 (Missing Movement). 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 contains guidance on the burden of proof. a. The ABCMR operates pursuant to law (Title 10, United states Code, Section 1552) within the Office of the Secretary of the Army. The ABCMR consists of civilians regularly employed in the executive part of the Department of the Army (DA) who are appointed by the Secretary of the Army and serve on the ABCMR as an additional duty. Three members constitute a quorum. b. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The ABCMR operates pursuant to law. Board members review applications that are properly before them to determine the existence of error or injustice. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence 2. In this case, the applicant's records (specifically his DA Form 201) are not available for review before the Board. However, there were sufficient documents available in a reconstructed record - his DD Form 214 - for the Board to conduct a fair and impartial review of his case. Board members are bound by law and regulation to review his application and address his specific issue. There are certain dates, regulations, codes, and authorities mentioned on the DD Form 214 that provide Board members with sufficient information to adjudicate his case. 3. The DD Form 214 shows the applicant was discharged on 19 February 1968, under the provisions of AR 635-206 by reason of conviction by a civil court (SPN 284). He completed 4 months and 15 days of net active service this period and he had multiple periods of lost time. The SPN code 284 is used when a Soldier is discharged under AR 635-206 by reason of civil conviction. 4. The applicant asserts that his discharge should have been automatically upgraded based on President Carter's executive orders. He states that President Carter granted amnesty and discharge upgrades for war protesters/deserters: a. The 1974 Presidential Proclamation and Executive Order established a clemency board to address persons who were either pending charges or convicted of violating the Military Selective Service Act as well as those who, while on active duty, had violated the UCMJ by desertion, being AWOL or missing movement. In those cases where the clemency board recommended a discharge upgrade, there was a requirement to complete alternative service. b. The 1977 Presidential Proclamation and Executive Order granted full amnesty to those persons who had violated the Military Selective Service Act. Excluded were those members of the military who had been convicted of violating the UCMJ for deserting, being AWOL or missing movement. c. The applicant provides no evidence indicating his case was considered by a clemency board, that he fulfilled the alternative service requirement. Likewise, he provides no evidence of any actions that have been taken by the VA with regard to his discharge. d. The narrative reason for his separation was conviction by a civil court. The offense for which he was convicted is unclear in the absence of his separation packet. Nevertheless, in the absence of evidence to the contrary, administrative regularity is presumed. e. Aside from his contention, there is no evidence from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time. All evidence indicates the requirements of law and regulations were presumably met and his rights were also presumably protected throughout the separation process. 4. In view of the available evidence, consisting of an indication of a civil court conviction and an indication of multiple periods of lost time, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This evidence indicates the misconduct which led to his discharge rendered his service unsatisfactory and indicates his service did not rise to the level required for an honorable or a general discharge. There is insufficient basis upon which to grant him the requested relief. The applicant always has the option to seek relief in a court of appropriate jurisdiction. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010200 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010200 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2