ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  4 March 2019

	DOCKET NUMBER:  AR20160015685


APPLICANT REQUESTS:  Upgrade of his under other than honorable conditions 
(UOTHC) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	VA Form 21-4138 (Statement in Support of Claim)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states while he was on designated leave, he was arrested for riding in 
a stolen car and was unable to return to Fort Dix, NJ.  During that time he was unable to 
communicate with his chain of command.  After six months of jail time, he received his 
discharge in the mail and didn’t think it was justified.  He didn’t know all of his rights and 
entitlements.  

3.  On 28 February 1968, the applicant enlisted in the Regular Army at the age of 19 
and completion of 1 year of high school (9th grade).

4.  On 8 June 1968, he received non-judicial punishment (NJP) for being absent without 
leave (AWOL) from on or about 20 May 1968 to on or about 2 June 1968.  

5.  On 22 June 1970, he was tried and given indeterminate 5 years sentence for 
possession of stolen goods.

6.  Special court-martial order (SCMO) number 2554, shows he was arraigned and tried 
on 9 September 1968.  He plead guilty and was found guilty for being absent without 
leave (AWOL) from on or about 30 June 1968 to on or about 15 July 1968 and again 
from on or about 17 July 1968 to on or about 20 August 1968.  He was sentenced to be 
confined at hard labor for 6 months and to forfeit $73.00 per month for 6 months.  The 
sentence was adjudged on 9 September 1968.

7.  SCMO number 224, shows all unexecuted portions of sentences to forfeitures 
pertaining to him were suspended until 6 December 1968, at which time, unless sooner 
vacated, the suspended portions of the sentences will be remitted without further action.  

8.  On 20 November 1968, SCMO number 351, shows all unexecuted portions of 
sentences to confinement at hard labor and forfeitures pertaining to him were remitted.

9.  On 16 May 1969, SCMO number 1543, shows he was arraigned and tried for being 
AWOL from on or about 11 January 1969 to on or about 7 May 1969; he plead and was 
found guilty.  He was sentenced to be confined at hard labor for 6 months and to forfeit 
$68.00 per month for 6 months. A previous conviction was considered.  

10.  On 4 November 1970, a letter from the Chief, Personnel Actions Section at Fort Dix 
shows the applicant was tried on 22 June 1970 and given indeterminate 5 years 
sentence for possession of stolen goods.

11.  On 16 November 1970, the applicant was advised by his commander he was being 
recommended for separation from the United States Army under the provisions of Army 
Regulation (AR) 635-206 (Active Duty Enlisted Administrative Separations), for a civil 
conviction, advised of him of his rights and notified him as a result he may receive an 
undesirable discharge.  

12.  On 4 December 1970, the applicant responded while in confinement and stated he 
wished to waive all of his rights. 

13.  On 10 December 1970, his commander recommended he be separated under the 
provisions of AR 635-206 because of conviction by civil court.  The basis for elimination 
is conviction by civil court for possession of stolen property.

14.  On 11 January 1971, the appropriate authority approved the discharge and directed 
the applicant be issued an undesirable discharge certificate.

15.  On 10 March 1971, the applicant was discharged accordingly.  He completed 7 
months and 1 day of active service.  His DD Form 214 shows he was awarded or 
authorized the National Defense Service Medal, Sharpshooter M-14 qualification badge 
and 7 periods (893 days) of lost time 

16.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  The Board has is not empowered to set aside a conviction, but is only 
empowered to change the severity of the sentence imposed in the court-martial 
process.


18.  The applicant provides a VA Statement in Support of Claim, he was presented with 
a no-win situation.  He was in jail and discharged without accurate representation.  His 
benefits and legal rights as a Soldier were violated. His records shows he was 19 years 
old with one year of high school education when he enlisted.  He was notified while in 
confinement of his proposed separation, available rights and of the opportunity to 
withdraw his waiver and request a board of officers to hear his case.  

19.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  The Board has is not empowered to set aside a conviction, but is only 
empowered to change the severity of the sentence imposed in the court-martial 
process.

20.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published guidance on equity, injustice, 
or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The Board considered the applicant’s contentions, 
and agreed the discharged characterization was warranted as a result of the 
misconduct.

?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


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.


ADMINISTRATIVE NOTE(S):

Not Applicable

?
REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three 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 three-year statute of 
limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-206 (Personnel Separations, Discharge, Misconduct 
(Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), 
then in effect, established policy and prescribed procedures for the elimination of 
enlisted personnel for misconduct by reason of fraudulent entry into the service, 
conviction by civil court, and absence without leave or desertion.  Section VI (Conviction 
by Civil Court) prescribed procedures for processing cases of individuals who, during 
their current term of active military service were initially convicted or adjudged juvenile 
offenders.
     a.  Pararaph 33a stated that an individual was considered for discharge when he had 
been initially convicted by civil authorities, or action had been taken against him which 
was tantamount to a finding of guilty, of an offense for which the maximum penalty 
under the Uniform Code of Military Justice (UCMJ) was death or confinement in excess 
of 1 year. 

     b.  Paragraph 34 stated the discharge or recommendation for discharge was not 
accomplished or submitted until the individual had indicated in writing that he did not 
intend to appeal the conviction, or until the time in which an appeal may be made had 
expired, whichever was earlier, or if the appeal had been made, until final action had 
been taken thereon.

     c.  An individual discharged for conviction by a civil court normally was furnished an 
Undesirable Discharge Certificate, however, an honorable or General Discharge 
Certificate could be furnished if the individual being discharged had been awarded a 
personal decoration, or if warranted by the particular circumstances in a given case.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.
   a.  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.  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.  Chapter 14 establishes policy and prescribes procedures for separating personnel 
for misconduct because of minor disciplinary infractions, a pattern of misconduct, 
commission of a serious offense, conviction by civil authorities, desertion, and absence 
without leave. 

          (1)  The issuance of a discharge under other than honorable conditions is 
normally considered appropriate for separations under the provisions of 
Chapter 14.  However, the separation authority may direct a general discharge if such is 
merited by the Soldier’s overall record.  Characterization of service as honorable is not 
authorized unless the Soldier’s record is otherwise so meritorious that any other 
characterization clearly would be inappropriate.  A characterization of honorable may be 
approved only by the commander exercising general court-martial jurisdiction, or higher 
authority, unless authority is delegated.

          (2)  Paragraph 14-12b provides for the separation of Soldiers when they have a 
pattern of misconduct involving acts of discreditable involvement with civil or military 
authorities and conduct which is prejudicial to good order and discipline.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  Clemency generally refers to relief specifically granted from a criminal 
sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.  This guidance does not mandate 
relief, but rather provides standards and principles to guide Boards in application of their 
equitable relief authority.  In determining whether to grant relief on the basis of equity, 
injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, 
external evidence, sworn testimony, policy changes, relative severity of misconduct, 
mental and behavioral health conditions, official governmental acknowledgement that a 
relevant error or injustice was committed, and uniformity of punishment.  Changes to the 
narrative reason for discharge and/or an upgraded character of service granted solely 
on equity, injustice, or clemency grounds normally should not result in separation pay, 
retroactive promotions, and payment of past medical expenses or similar benefits that 
might have been received if the original discharge had been for the revised reason or 
had the upgraded service characterization.


ABCMR Record of Proceedings (cont)	 AR20160015685
	
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