ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 6 September 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160001592 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 22 Aug 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 8 January 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl ,(!. -- Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160001592 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 August 2017 DOCKET NUMBER: AR20160001592 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 August 2017 DOCKET NUMBER: AR20160001592 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 his undesirable discharge be upgraded to an honorable discharge. 2. The applicant states his punishment was too severe for a $10.38 theft. a. He explains his work and marital history from his discharge to the year 2000. b. He and his wife became foster parents through the Department of Children and Family Services (DCFS) and fostered close to 20 children. They adopted their son through DCFS. To become a foster parent he was fingerprinted and had a Federal Bureau of Investigation background check. He also has a concealed weapons permit for the State of Colorado. c. He wants his discharge upgraded because it is the only thing he regrets. He has coronary artery disease, had open heart surgery, and has had seven stents over the past 15 years. He is on Social Security Disability due to heart failure and he would be grateful for an upgraded discharge. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) with an effective date of 26 July 1974 * DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record)) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 30 October 1972, the applicant was inducted into the Army of the United States. He completed basic combat and advanced individual training and was awarded military occupation specialty 13B (Field Artillery Crewman). On 3 April 1973, he was assigned to the 1st Battalion, 68th Air Defense Artillery at Fort Hood, TX. 3. The applicant received non-judicial punishment (NJP) on: * 20 August 1973, for failing to obey a lawful order from a noncommissioned officer * 29 November 1973, for failing to go at the time prescribed to his appointed place of duty 4. On 15 January 1974, the applicant was tried before a summary court-martial. a. He pled guilty and was found guilty of stealing a bottle of glue ($.16 value), a tire gauge ($1.35 value), a spark plug cleaner and test kit ($1.70 value), and a studio card ($.35 value); a total of $3.56, the property of the Army, Air Force Exchange Service at Fort Hood. b. His punishment consisted of reduction to private/pay grade E-1 (suspended for 60 days) and a forfeiture of $217 pay for 1 month. No previous convictions were considered. 5. On 16 January 1974, the convening authority approved the sentence. 6. On 23 May 1974, the applicant was tried before a special court-martial. a. He pled not guilty and was found guilty of stealing two packs of Kodak film (valued at $4.70 each) and one pack of Magic Cube Flash Bulbs (valued at $.98), which equals a total value of about $10.38, the property of the Fort Hood Main Exchange. b. His punishment consisted of confinement at hard labor for 4 months and a forfeiture of $200 pay for 4 months. One previous conviction was considered. The Military Judge recommended the convening authority inquire into the applicant's suitability for further military service. 7. On 5 June 1974, the convening authority approved the sentence. 8. The applicant's DA Form 20B records the applicant's convictions by the summary court-martial and the special court-martial including the sentences he received. 9. On 12 July 1974, he was given a mental status evaluation. The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. 10. The applicant's separation processing packet was not available for review. 11. On 26 July 1974, the applicant received an undesirable discharge under the provisions of paragraph 13-5a(1) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unfitness, frequent involvement of a discreditable nature with civil or military authorities. He completed 1 year, 6 months, and 24 days of net active service that was characterized as under other than honorable conditions. He had 63 days of time lost. 12. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. The Manual for Courts-Martial (MCM), United States, in effect at the time, indicates the maximum punishment for violation of Article 121, Uniform Code of Military Justice, for larceny of property of a value of $50 or less is a bad conduct discharge and 6 months in confinement. 2. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor. The issuance of an honorable discharge was conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 13-5a provided for the discharge of individuals for unfitness. Among the reasons for unfitness were frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking. This regulation further provided that an individual separated for unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends the punishment he received at his special court-martial for a $10.38 theft was too severe. However, according the MCM, in effect at the time, he could have received 6 months in confinement and a bad conduct discharge for the same offense. 2. The applicant's post-service history and achievements were noted. However, post-service conduct alone is not normally a basis for upgrading a properly issued discharge. In addition, discharges are not normally upgraded solely based on time. 3. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Although the applicant's separation packet was not available it is presumed the Army's administrative processing of the applicant for discharge was correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. In the absence of evidence to the contrary, it is presumed the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The records contain no indication of procedural or other errors that would have jeopardized his rights. 6. The applicant received NJP on two occasions and he was convicted by a summary court-martial and a special court-martial. 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) AR20160001592 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001592 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2