BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150015530 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: 7 February 2017 DOCKET NUMBER: AR20150015530 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 to warrant amendment of the ABCMR's decision in Docket Number AR1999022912, dated 19 August 1999, 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: 7 February 2017 DOCKET NUMBER: AR20150015530 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, in effect, reconsideration of his earlier request to upgrade his under other than honorable conditions discharge. 2. The applicant states: a. He proudly entered active duty in October 1973. A former employer issued him a bad check prior to entering the service, and he was trying to "keep [his] head above water" until his enlistment started. This bad check caused him some unanticipated financial turmoil. b. His recruiter was aware he had been charged in regard to the bad check; he said he would help, but did not fulfill his promise. He still had to go to court because of the "check" and the judge ordered him to serve 2 1/2 years in jail. He did not tell the Army he had been incarcerated; therefore, his counselor came and served him discharge papers. c. While he was in the Army, he obeyed his superiors and performed his duties to the best of his abilities. He asserts he was a dependable employee as a member of an infantry regiment and felt honored to fight for his country. Had he not had this bad check issue, he would have stayed in the military as long as possible. He has not been in trouble since that period of incarceration. He has turned to religion, and actively volunteers his time and money to help veterans. d. He deeply regrets letting down his country and those who trained him by failing to complete his enlistment. He also wants to point out that the basis for his discharge was something that happened before he entered the Army. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) for the period ending 31 July 1975 * five letters of support * Record of Proceedings for Army Board for Correction of Military Records (ABCMR), Docket Number AR1999022912, dated 19 August 1999 * three letters from the Army Review Boards Agency 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 ABCMR in Docket Number AR1999022912 on 19 August 1999. 2. The applicant submits letters of support evidence not previously considered, which warrant consideration by the Board. 3. The applicant enlisted in the Regular Army on 29 October 1973. 4. On 20 March 1974, while attending infantry advanced individual training (AIT) at Fort Polk, LA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 6 to 13 March 1974. 5. After completion of infantry AIT, he was assigned to Fort Campbell, KY, arriving on or about 28 March 1974. On 1 May 1974, he again accepted NJP for being AWOL from 8 to 28 April 1974. 6. On 3 June 1974, he left his unit at Fort Campbell in an AWOL status and, on 2 July 1974, he was dropped from Army rolls. 7. His available service record contains: a. DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), which shows the applicant was apprehended by civil authority on 11 October 1974 while attempting to cash a stolen check. b. Three judgments from a criminal court in the State of Tennessee indicating the applicant was arrested on 23 December 1973, 4 January, and 14 October 1974, respectively. He was convicted and sentenced based on three charges: * felonious passing and/or transferring a forged instrument valued at over $100; 3 years confinement * receiving and/or concealing stolen property valued at less than $100; 1  year confinement * felonious obtaining of money under false pretenses for a value over $100; 3 years confinement c. Memorandum, dated 12 February 1975, addressed to the applicant wherein his unit advised him that a discharge action had been initiated under the provisions of Army Regulation (AR) 635-206 (Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL ,or Desertion). d. On 20 March 1975, the applicant acknowledged, in writing, receipt of the proposed separation action. In addition to the applicant's signature is the signature of a Judge Advocate General's Corps counselor. The applicant indicated the following elections, he: * requested consideration of his case by a board of officers * waived his personal appearance before the board * submitted statements in his own behalf * waived his right to representation by appointed military counsel * noted his time limit to submit an appeal had not expired, but he did not intend to appeal his case e. His available service record is void of any record of a board being convened to review the applicant's separation. There is, however, a memorandum, signed by Major General JWM, Commanding General, 101st Airborne Division and Fort Campbell, that indicates a board's recommendation for separation was approved. It also states the applicant was to be discharged under the provisions of paragraphs 33a and 37a, AR 635-206, with the separation program designator (SPD) JKB (misconduct - conviction by civil court or adjudged a juvenile offender). 8. The applicant was discharged under other than honorable conditions on 31 July 1975. His DD Form 214 shows he completed 6 months and 11 days of net active creditable service. The authority is paragraphs 33a and 37a, AR 635-200 [sic, AR 635-206], and the SPD is code JKB. He had 448 days of lost time due to being AWOL and in confinement. 9. On 30 September 1978, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. The ADRB denied his petition on 28 November 1979. 10. On 25 January 1999, he requested the ABCMR upgrade his character of service. The Board denied his request. 11. The applicant provides five letters of support, one from his Alcohol Dependency Treatment Program counselor, one from a fellow parishioner, and three letters from the senior living facility at which he does volunteer work. All extol the applicant's virtues as an outstanding member of the community and someone who has embraced sobriety and service to others. REFERENCES: 1. AR 635-206, in effect at the time, stated, in Section VI (Conviction by Civil Court), separation action was to be initiated when a Soldier was convicted by civil authorities of an offense under the UCMJ that would result in a sentence of either death or confinement for more than 1 year. An Undesirable Discharge Certificate will normally be issued to Soldiers discharged under this provision. 2. Manual for Courts-Martial, in effect at the time, showed the following offenses and punishments: * Article 123a, worthless, making, drawing, uttering, delivering, with intent to defraud (for procurement of an article or thing of value), in the face amount of more than $100: 1 year in confinement * Article 134 (General Article), knowingly receiving stolen property valued at less than $100: 6 months in confinement; if more than $100: 3 years in confinement 3. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states in: a. Paragraph 3-7a, 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, 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. 4. AR 635-5 (Personnel Separations - Separation Forms), in effect at the time, stated an SPD code of JKB was given to Soldiers separated under the provisions of AR 635-206 for misconduct - conviction by civil court or adjudged a juvenile offender. 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. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. 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 applicant requests reconsideration of his earlier request to upgrade his under other than honorable conditions character of service. In support of his request, he provides five letters of support. 2. The applicant was convicted by a civilian criminal court of offenses that, under the UCMJ, included maximum punishments of confinement for more than 1 year. Based on this, his unit initiated separation action under against him under AR 635-206. a. The applicant's complete discharge packet is not available for review. Nonetheless, there is no evidence submitted by the applicant or from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time. b. The Board presumes regularity and that actions taken by the Army are administratively correct. All evidence indicates the requirements of law and regulations were presumably met, and the rights of the applicant were fully protected throughout the separation process. Absent any evidence to the contrary, regularity must be presumed. 3. The applicant offers proof of post-service contributions to his community and a clear effort to improve himself. While significant, the characterization of service focuses exclusively on the period of active service. In this respect, the evidence of record shows he had a pattern of going AWOL and was AWOL at the time he was arrested by civil authorities. The applicant's acts of misconduct, both within the military and in a civilian context do not appear to have met the requirements associated with an honorable or a general character of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015530 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015530 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2