BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150013831 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 BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150013831 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. ____________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. BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150013831 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 request to upgrade his under other than honorable conditions (UOTHC) discharge. 2. The applicant states he was discharged from the Army with a UOTHC characterization of service based on a civil conviction. He was fully pardoned for the offense for which he was tried and convicted. 3. The applicant provides: * DD Form 214 * State of Louisiana Department of Public Safety and Corrections, Division of Probation and Parole, Baton Rouge, LA, dated 25 September 1987 * Three U.S. Army Retraining Brigade Certificates of Achievement, dated 23 June 1981 * Letter of Appreciation, dated 23 September 1988 * Headquarters 1st Infantry Division and Fort Riley, Fort Riley, KS, Certificate of Appreciation, dated 11 December 1979 * DA Form 705 (Army Physical Readiness Test Scorecard) 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 AR20120010560, on 8 January 2013. 2. The applicant enlisted in the Regular Army (RA) on 7 July 1977 for a period of 3 years. He was awarded military occupational specialty 64C (Motor Transport Operator) and promoted to sergeant/pay grade E-5 on 13 June 1980. 3. He reenlisted in the RA on 1 July 1980 for a period of 3 years. 4. On 18 December 1980, the applicant received nonjudicial punishment (NJP) for failing to obey a lawful order from a superior noncommissioned officer (NCO). 5. On 10 March 1981, the applicant received NJP for two specifications of failing to obey a lawful order from a superior NCO and being disrespectful in language. 6. On 8 April 1981, the applicant's commander initiated a bar to reenlistment against the applicant. The Acting Commander, 1st Infantry Division Artillery, approved the bar to reenlistment on 13 April 1981. 7. On 13 April 1981, the applicant was convicted at a summary court-martial (SCM) of two specifications of communicating a threat to injure a Soldier. He was sentenced to reduction to pay grade of E-1, forfeiture of $334.00 pay for 1 month, and confinement at hard labor for 30 days. 8. DA Forms 4187 (Personnel Actions) show the applicant was confined by military authorities on 7 May 1981 and returned to his unit on 13 May 1981. 9. On 30 October 1981, the applicant received NJP for misconduct for failing to go to his appointed place of duty. 10. DA Forms 4187 (Personnel Actions) show the applicant was confined by military authorities on 28 November 1981 and returned to his unit on 8 December 1981. 11. On 18 December 1981, the applicant received NJP for failing to obey a lawful order and dereliction of duty. 12. On 29 June 1982, the applicant's company commander notified him that he was recommending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), based on conviction by a civil court of simple burglary on 26 April 1982. The applicant was advised of his rights and the separation procedures involved. 13. The applicant consulted with legal counsel and was advised of the rights available to him. * he requested consideration of his case by a board of officers, personal appearance before the board, and representation by military counsel * the applicant and his counsel placed their signatures on the document 14. On 29 July 1982, the applicant was notified that a board of officers had been appointed to determine if he should be discharged. He was advised of his rights, including his right to representation by counsel, to examine and object to the introduction of real and documentary evidence, tocall witnesses on his own behalf and otherwise introduce evidence, to cross-examine witnesses other than his own, and to testify as a witness in his own behalf. 15. On 13 August 1982, a board of officers convened to determine if the applicant should be discharged from the U.S. Army due to misconduct based on his conviction by civil court. a. The summarized record of proceedings show the applicant was represented by counsel and that the applicant testified in his own behalf. Two commissioned officers and a NCO from his unit also testified on behalf of the applicant. b. The board found the applicant undesirable for further retention in military service because of his conviction by civil court and a pattern of misconduct, even after receiving rehabilitation at the Retraining Brigade, Fort Riley, Kansas. The board recommended the applicant be discharged from the U.S. Army with an UOTHC Discharge. c. The applicant submitted a letter to the approving authority appealing the board proceedings. 16. On 31 August 1982, the separation authority approved the board's recommendation for discharge of the applicant and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct with a UOTHC discharge. 17. The applicant's DD Form 214 shows he was discharged on 14 September 1982 under the provisions of Army Regulation 635-200, chapter 14, section III, for misconduct - civil conviction, with service characterized as UOTHC. He had completed 5 years, 1 month, and 4 days of net active service this period. 18. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. 19. On 25 September 1987, the State of Louisiana, Department of Public Safety and Corrections Division of Probations and Parole, Baton Rouge, LA issued a Verification of First Offender Pardon on behalf of the applicant, which stated, “…this will certify and proclaim that effective April 26, 1987, defendant is fully pardoned for the offense above stated and that all rights of citizenship and franchise are restored in Louisiana.” 20. The applicant provided three Certificates of Achievement, a Letter of Appreciation, a Certificate of Appreciation, and DA Form 705. REFERENCES: 1. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. b. Chapter 3, 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. c. Chapter 3, paragraph 3-7b, provides that 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. 2. On its website, the Department of Justice has published pardon information and instructions. Section 6 (pardon of a military offense) states, “Pardon of a military offense will not change the character of a military discharge. An upgrade or other change to a military discharge may only be accomplished by action of the appropriate military authorities.” DISCUSSION: 1. The applicant contends that due to his Verification of First Offender Pardon, issued by the State of Louisiana, he should receive an upgrade to his characterization of service. His entire record of service was carefully considered, including his prior SCM, NJP, military achievements, awards, and his civilian pardon. 2. The evidence of record shows the applicant was tried and convicted in civilian court for simple burglary. Therefore, his discharge from the Army was effected in accordance with applicable law and regulations, and the final approved discharge appropriately characterized the misconduct for which he was convicted. 3. A Verification of First Offender Pardon issued by the State of Louisiana for a civil conviction does not mandate ABCMR to change the characterization of military service nor does it automatically entitle the applicant to an upgrade of his UOTHC discharge. The ABCMR may consider any relevant information, including the reasons that led to the granting of the pardon. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013831 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013831 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2