BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005712 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: 19 December 2017 DOCKET NUMBER: AR20160005712 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: 19 December 2017 DOCKET NUMBER: AR20160005712 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 under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states he wants to be eligible for Department of Veterans Affairs (VA) benefits. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 20 November 1968. He contends he provides his "first discharge," which he further contends was honorable; however, this document did not accompany his application. 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. The applicant enlisted in the Regular Army on 22 April 1965 and served honorably until he was honorably discharged on 17 August 1967. He reenlisted in the Regular Army on 18 August 1967. He held military occupational specialty 63C (General Vehicle Repairman) and the highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4. 3. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. on 18 October 1967, for being derelict in the performance of his duties by failing to supervise the men under his control on 17 October 1967; b. on 22 November 1967, for leaving his post before he was properly relieved on 20 November 1967; and c. on 20 January 1968, for failing to go at the time prescribed to his appointed place of duty on 16 January 1968 and again on 17 January 1968. 4. Summary Court-Martial Order Number 2, issued by Headquarters, 4th Engineer Advanced Individual Training (AIT) Brigade, Fort Leonard Wood, MO, on 1 February 1968, shows the applicant was found guilty on two specifications of violating Article 134 of the UCMJ, to wit: a. for wrongfully ignoring a posted stop sign by proceeding through the intersection without stopping on or about 13 December 1967 and b. for wrongfully operating a motor vehicle at a rate of speed in excess of the posted speed on or about 16 December 1967. He was sentenced to hard labor without confinement for 30 days and forfeiture of $99.00 pay. His sentence was adjudged and approved by the approving authority on 1 February 1968. 5. Summary Court-Martial Order Number 4, issued by Headquarters, 4th Engineer AIT Brigade, Fort Leonard Wood, MO, on 2 April 1968, shows Summary Court-Martial Order Number 2 was amended by reducing the forfeiture of pay to $90.00. His sentence was approved and ordered to be executed on 2 April 1968. 6. The applicant accepted non-judicial punishment on 8 April 1968 under the provisions of Article 15 of the UCMJ for operating his personal vehicle without proper post registration on 20 March 1968 and for failing to go at the time prescribed to his appointed place of duty on 3 April 1968 at the 0600 and 0700 hours formations. 7. The applicant's record contains a State of Missouri, County of Pulaski Circuit Court – Sentence and Judgment of Court and Commitment, dated 18 September 1968, which indicates he was tried and found guilty of stealing an automobile on or about 29 December 1967 and was sentenced to two years of confinement in the Missouri State Penitentiary. 8. The applicant was notified via registered mail, which was witnessed by a Department of Corrections Casework Supervisor on or about 1 October 1968, that his commander was initiating separation actions against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) based on his conviction by a civil court. 9. On a Fort Leonard Wood (FLW) Form 949 dated 1 October 1968, the applicant acknowledged his rights under the provisions of Army Regulation 635-206 and indicated his options by signature and the placement of his initials: * he waived military counsel * he waived appointment of military counsel to him in his absence and present his case before a Board of Officers * he did not desire to submit a written statement in his own behalf * he did not intend to appeal his conviction by the State of Missouri This form was witnessed by a Corrections Casework Supervisor on the same day. 10. The applicant's immediate and intermediate commanders recommended his discharge on or about 28 October 1968, in light of the nature of his civil conviction, his clashes with authorities, and his substandard performance of duty. It was noted he was afforded counsel by the Soldier's Advocate Division. They recommended he received an undesirable discharge under the provisions of Army Regulation 635-206, section VI, paragraph 33 - conviction by civil court. 11. The separation authority approved his discharge on 15 November 1968, under the provisions of Army Regulation 635-206, section VI, paragraph 33, by reason of misconduct by civil court. The separation authority directed that the applicant be reduced to the lowest enlisted grade and that he be discharged with an Undesirable Discharge Certificate. 12. The applicant was discharged on 20 November 1968. The DD Form 214 he was issued confirms he was separated under the provisions of Army Regulation 635-206, section VI, by reason of misconduct–conviction by civil court. 13. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigating agency. 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 evidence. 2. Army Regulation 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 of the regulation provided that 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 Uniform Code of Military Justice 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Paragraph 3-7c states a discharge under other than honorable conditions is based on an administrative separation from the service, and may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The applicant's record shows he was charged and convicted by a Missouri civil court for stealing an automobile. He was sentenced to two years of confinement in the Missouri State Penitentiary. Further, his military record reveals a number of offenses, to include four instances of nonjudicial punishment and a summary court-martial conviction. 3. The applicant's chain of command initiated separation action against him and he was notified accordingly. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 4. The applicant contends an upgrade of his discharge would benefit him in securing VA entitlements/benefits. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005712 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005712 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2