BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006797 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 8 May 2018 DOCKET NUMBER: AR20160006797 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 (UOTHC) discharge be upgraded to an honorable discharge. 2. The applicant provides no statement in support of his request. 3. The applicant provides copies of his DD Form 4 (Enlistment Contract – Armed Forces of the United States), DA Form 20 (Enlisted Qualification Record) (extract), and DD Form 214 (Report of Separation from Active Duty). 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 15 December 1972. 3. The applicant accepted non-judicial punishment (NJP) on 2 November 1973, under the provisions of Article 15 of the UCMJ, for being absent without leave (AWOL) from on or about 29 October 1973 through on or about 31 October 1973. 4. A DA Form 188 (Extract Copy of Morning Report), dated 26 April 1974, shows the applicant was reported AWOL by his unit, the 406th General Supply Company, Fort Bragg, NC, beginning on or about 29 March 1974. He was dropped from rolls of the Army on 26 April 1974. 5. A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 26 June 1974, from the AWOL Section, Fort Hamilton, NY, shows the applicant surrendered to military authorities on 28 May 1974. He was then assigned to Company A, U.S. Army Personnel Control Facility, Fort Dix, NJ. 6. A DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 25 June 1974 from U.S. Army Personnel Control Facility, Fort Dix, shows the applicant was reported AWOL on 4 June 1974 at 0800 and was dropped from the rolls of the Army the same day. 7. A Department of the Army Pentagon Telecommunications Center message, dated 8 November 1974, shows that while in an AWOL status, the applicant was arrested on 7 November 1974, by the New York Police Department (NYPD). He was charged with murder and attempted robbery and was held in civilian custody. 8. Special Orders Number 181, issued by Headquarters, U.S. Army Training Center and Fort Dix on 30 June 1975, shows the applicant was dropped from the rolls and reassigned to Company A, U.S. Army Personnel Control Facility, Fort Dix, NJ for administration and disposition effective 25 June 1975. 9. A DA Form 3975 (Military Police Report) from the Armed Forces Police Detachment, Brooklyn, NY shows the applicant was convicted of murder and attempted robbery on 19 September 1975, in the Queens Criminal Court, NY, and was sentenced to 15 years of confinement at the NY State Department of Corrections. 10. The applicant was notified on or about 18 January 1977 that his commander was considering him for elimination under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), based on his civil conviction. His commander advised him of his right to: * appointment of military counsel to represent him and, in his absence, present his case before a board of officers * submit statements in his own behalf * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge 11. The applicant acknowledged receipt of the notification on 22 January 1977. He further noted: * he did correspond with his consulting counsel * he intended to appeal his civil conviction * he requested his case be considered before a board of officers * he would submit statement in his own behalf 12. The applicant's statements were not available for review. 13. The applicant and his counsel were notified on 8 February 1977 to appear before a board of officers, under the provisions of Army Regulation 635-206, to determine if he should be discharged from the Army following his civil conviction and confinement. 14. A board of officers convened at Fort Dix, NJ on 8 March 1977. As a result of his incarceration, the applicant did not appear; however, he was represented by counsel. The board found the applicant was undesirable for further retention because of his conviction by civil court. The board recommended that he be discharged from the service because of conviction by civil court with the issuance of a UOTHC Discharge Certificate. 15. The separation authority approved the board's recommendation on 28 March 1977 and directed that the applicant be separated under the provisions of Army Regulation 635-206, section VI, paragraph 33, Separation Program Designator (SPD) "JKB," due to conviction by civil court. The separation authority further directed the applicant be reduced to the lowest enlisted grade and that he be issued a UOTHC Discharge Certificate. 16. The applicant was discharged on 5 April 1977. The DD Form 214 he was issued confirms he was separated under the provisions of Army Regulation 635-206, section VI, SPD "JKB," by reason of conviction by civil court. He completed 1 year, 3 months, and 20 days of total active service that was characterized as UOTHC. His DD Form 214 shows he had 1095 days lost time. 17. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. After careful consideration of his military records and all other available evidence, the ADRB determined, on 30 August 1979, he was properly and equitably discharged. Accordingly, his request for a change in the type and nature of his discharge was denied. 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 UOTHC discharge 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 UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. DISCUSSION: 1. The applicant requests his UOTHC discharge be upgraded to an honorable discharge. 2. The applicant's record reveals an instance of NJP, a number AWOL offenses, and a conviction by a New York criminal court for murder and attempted robbery. Following his civil conviction, the applicant was sentenced to 15 years of confinement in the New York State Department of Corrections. 3. The applicant's chain of command initiated separation actions 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 does not provide a statement with his request. 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. BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006797 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. 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. . //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006797 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006797 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2