BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150017167 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: 11 May 2017 DOCKET NUMBER: AR20150017167 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR2000048226 on 11 January 2001. _______________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: 11 May 2017 DOCKET NUMBER: AR20150017167 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 previous request for an upgrade of his discharge. 2. The applicant states: a. He is requesting an upgrade for the purpose of obtaining benefits from the Department of Veterans Affairs (VA). He disagrees with the denial of his claim by the VA. He is his parent's oldest son. He volunteered at 17 years of age to join the Army. His mother, a housewife, needed money, and she told him to join the U.S. Army for future support and he did. b. After serving for about 7 months, he received a 3-day pass to go home without hazard or complication to his military unit or duty. However, his mom was never satisfied, and when he showed up at home on leave she refused to see him or greet him and denied his visit. She shut the door violently in his face for no reason except anger and hatred. She always blamed him for everything that made her angry. He was forced to make his own way back to the base. He learned that she had spent the allotment money he had sent her. He was abandoned by his family while on a weekend pass. c. He did not commit the offense of which he was accused, misuse of an automobile, and no property damage occurred. He was charged with a felony in error. While test driving a car for sale, he was pulled over for speeding. He was charged and placed in jail. After his discharge, he mother asked him to return home to help again with the family bills. He was wounded by a gunshot that left him disabled for life. He remains stressed out and unable to complete his goals due to his dysfunctional family. He needs help. 3. The applicant provides an Order of Dismissal and a letter from an attorney. 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 (ABMCR) in Docket Number AR2000048226 on 11 January 2001. 2. The applicant provided a new argument requiring consideration by the Board. 3. He was born in May 1955 and he enlisted in the Regular Army on 15 October 1973. At the time of his enlistment, he was 18 years of age. He did not complete advanced individual training for award of a military occupation specialty. He did not compete any foreign service. He was advanced to pay grade E-2 on 15 February 1974. 4. On 5 March 1974, in Texas, the applicant was arrested and charged with speeding and driving a stolen vehicle. 5. On 5 March 1974, flagging action was initiated against the applicant based on his arrest. 6. On 15 March 1974, he was convicted by a civil court of vehicle theft and he was sentenced to 2 years of confinement and 1 year of probation. 7. In a letter, dated 16 April 1974, subject: Letter of Intent to Separate Under the Provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct), the applicant was advised of proposed separation action based on his civilian conviction and the possible issuance of an Under Other Than Honorable Discharge Certificate. He was also advised of his rights. 8. On 16 April 1974, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action. He waived his rights and acknowledged he understood he could be discharged under conditions other than honorable and the issuance of such a discharge. Additionally, he acknowledged that he understood he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life. He submitted a statement in own behalf that did not intend to appeal the conviction. 9. On 26 April 1974, the applicant's company commander recommended the applicant be separated from the Army under the provisions of AR 635-206, based on his civilian conviction. He recommended the issuance of a general discharge. 10. On 5 June 1974, the separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1. 11. He was discharged accordingly on 7 June 1974. He was credited with completing 7 months and 15 days of net active service. His service was characterized as under other than honorable conditions. Item 11c (Reason and Authority) of his DD Form 214 shows separation program number (SPN) 284. 12. On 30 June 1975 and 17 January 1978, the Army Discharge Review Board denied his petitions for an upgrade of his discharge. 13. On 11 January 2001, the ABCMR denied his petition for an upgrade of his discharge. 14. He provided copies of the following: * Order of Dismissal, dated 29 September 2015, wherein the State of Texas dismissed a case against him due to insufficient evidence * Letter, undated, wherein an attorney advised that the Houston Municipal Court had issued the applicant a citation pertaining to a permit for building ownership REFERENCES: 1. AR 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. The regulation provided, in pertinent part, for the separation of personnel for conviction by a civil court. An undesirable discharge was normally considered appropriate. 2. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a – An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. Paragraph 3-7b – A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. At the time of the applicant's discharge, SPN 284 applied to persons who were discharged for conviction by civil court. DISCUSSION AND CONCLUSIONS: 1. The applicant was convicted by a civilian court and was sentenced to serve 2 years of confinement and 1 year of probation. Separation action was initiated by reason of his civil conviction. He acknowledged receipt of the proposed separation action and that he could be issued an undesirable discharge. The separation authority approved his discharge and he was discharged accordingly. 2. There is also no evidence indicating he was erroneously or unjustly charged and convicted. 3. He was over 18 years of age at the time of his enlistment and over 19 years of age at the time of his offense. There is no evidence he was any less mature than any other Soldiers of the same age who honorably completed their terms of service or that his actions were a result of his age. 4. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. The characterization of service he received was commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017167 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017167 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2