BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006846 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. BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006846 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: 5 April 2018 DOCKET NUMBER: AR20160006846 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 upgrade of his under other than honorable conditions discharge to honorable. 2. The applicant states he feels he has carried the stigma of an under other than honorable character of service long enough. The reason he received this adverse character of service was because he was driving the car when some guys who were with him robbed a 7-11 convenience store. During this encounter, those same guys who committed the robbery nearly shot him. Because he was driving the car, he had to serve 12 years in jail. He now feels it has gone on long enough and he would like his character of service upgraded. 3. The applicant provides a National Archives (NA) Form 13038 (Certification of Military Service) and DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for periods ending 3 September 1970 and 27 March 1973. 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 6 December 1962. He held military occupational specialties 91A (Medical Corpsman) and 91B (Medical Specialist). He served continuously through reenlistments. 3. He completed tours in Germany (11 December 1963 to 23 December 1966, a period of 3 years and 13 days) and Vietnam (23 November 1967 to 27 March 1970, a period of 2 years, 4 months, and 5 days). While in Vietnam, he was promoted to staff sergeant, effective 12 October 1968. 4. Following his service in Vietnam, he was reassigned to Fort Campbell, KY, arriving on 11 May 1970. 5. While at Fort Campbell, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following two occasions: * 19 November 1970 – two specifications of failing to go to his appointed place of duty at the time prescribed (also known as failure to repair (FTR)), and one specification of dereliction of duty by falling asleep while on duty * 10 December 1970 – one specification of FTR 6. On 17 February 1971, the applicant was arrested for armed robbery, convicted by a civilian court, and sentenced to 12 years of imprisonment. His imprisonment commenced on 29 March 1971. 7. On 1 March 1973, the applicant's Fort Campbell commander recommended separation under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge, Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)) based on the applicant's conviction by a civil court. The applicant's available service record does not include the applicant's acknowledgements or what, if any, elections he may have made. 8. On 22 March 1973, the separation authority approved the commander's recommendation, and directed the applicant be issued an Undesirable Discharge Certificate. In addition, he was reduced to private/E-1, in accordance with paragraph 37b, AR 635-206, and paragraph 7-30b (3) (Approved for Discharge from Service with an Undesirable Discharge), AR 600-200 (Enlisted Personnel Management System). He was discharged accordingly on 27 March 1973. 9. His DD Form 214 showed he completed 5 months and 14 days of net active creditable service, with 769 days of lost time. He also had 7 years, 8 months, and 28 days of other service. Additionally, his DD Form 214 reflected the following: * reason and authority for discharge was paragraphs 33a and 37a, AR 635-206; separation program number 284 (misconduct – convicted by a civil court during current term of active military service) * his character of service was under other than honorable conditions * there were no decorations, medals, or badges listed; however a previous DD Form 214 showed the award of the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and Army Good Conduct Medal (2nd Award) 10. On 20 April 1977, the applicant applied to the Department of Defense Special Discharge Review Program (DOD SDRP) for an upgrade in his character of service. a. He submitted a self-authored statement, in which he essentially stated: * he wanted the board to be aware of information apparently not included in his records; he gave a description of other aspects of his military and contended his service was satisfactory prior to the incident that resulted in his civil conviction * while on active duty, he received the following awards: the Army Good Conduct Medal, Combat Medical Badge, campaign credit for service during the Tet Offensive, and Purple Heart for wounds incurred while in Vietnam as a result of a hand grenade * he was also awarded two medals by a Vietnamese unit for outstanding duty performance as a medical advisor * he served a total of 2 years and 9 months in Vietnam and 3 years in Germany * he stated he came from a poor family of eight, and all male members entered the military; he spoke of pre-service academic achievements * he asserted police and court records should show he tried to stop the armed robbery and attempted to prevent the man in the store from being shot (that man stated this in court); they had all been drinking a lot and had smoked some drugs b. On 19 January 1978, the DOD SDRP concluded the applicant was properly and equitably discharged; his appeal was denied. 11. On 12 December 1978, The Adjutant General advised the applicant by letter of a court decision directing that former Soldiers whose cases were reviewed by the Army Discharge Review Board (ADRB) were entitled to a new review. Based on this letter, the applicant submitted an application on 19 September 1979 to have his character of service upgraded. He also requested a personal hearing. * the ADRB approved his request for a personal hearing * a hearing was held on 18 June 1981; the applicant did not appear * the board found his discharge was proper and equitable; his appeal was denied REFERENCES: 1. AR 635-206, then in effect, prescribed policies and procedures for elimination of enlisted Soldiers for misconduct, which included conviction by a civil court. a. Paragraph 33a (Conditions which Subject Individual to Discharge – Conviction by Civil Court) stated an individual was to be considered for discharge when it was determined he/she was initially convicted by civil authorities of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year. b. Paragraph 37 (Authority for Discharge or Retention) stated the court-martial convening authority was authorized to order discharge or direct the Soldier's retention when a domestic court made disposition of the charges against that Soldier. An undesirable discharge under other than honorable conditions was considered an appropriate disposition and character of service. Soldiers with this type of discharged were to be reduced to the lowest enlisted grade. 2. The Manual for Courts-Martial, in effect at the time, showed the following maximum punishment for violating Article 122 (Robbery): dishonorable discharge and 10 years confinement. 3. AR 600-200, in effect at the time, prescribed policies and procedures for enlisted personnel management. Paragraph 7-30b(3) stated, upon determination an individual was to be discharged with an undesirable discharged, he/she would be reduced to the lowest enlisted grade. 4. AR 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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. 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 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 evidence of record shows the applicant was convicted for Armed Robbery by a civil court, and was sentenced to 12 years in prison. Accordingly, his chain of command initiated separation action against him under the provisions of AR 635-206. a. His available service record is void of any documents affirming he received notice or that he was given an opportunity to make elections. However, in such cases, the Board presumes administrative regularity, which is to say the Army is presumed to have taken all proper steps in accordance with the laws and regulations that were in effect at the time. b. This presumption can be overcome when there is compelling evidence to the contrary; no such proof has been offered in this case. 2. It appears 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2