BOARD DATE: 24 April 2020 DOCKET NUMBER: AR20160017104 APPLICANT REQUESTS: to upgrade his under other than honorable conditions discharge to a general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement, 7 October 2016 * DD Form 214 (Report of Separation from Active Duty), effective date 14 February 1979 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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 he was never given a hearing or Article 15. He was not court- martialed. He spent 2 days in a civil jail for an infraction of possession of stolen property for a CB radio he bought from someone. He did not know it was stolen. He was not provided due process under the Uniform Code of Military Justice. a. Sometime after 31 June 1978, he was assigned to a unit at Fort Richardson, AK. He was driving in Anchorage when he was stopped by Anchorage Police. The officer searched his car and found a CB radio that he had purchased from an acquaintance. When the officer checked the serial number, it came back as a stolen item. He was issued a citation by the officer to appear in court. He was charged with possession of stolen property. When he appeared in the local court, the Judge accepted his plea with an explanation. In recognition of his status as a Soldier, the Judge sentenced him to one weekend in jail. b. He accepted the weekend in jail without the assistance of counsel, not knowing it would affect his status in the Army. Soon thereafter, he was called to the First Sergeant’s office and notified that he was being processed for a discharged based on the civil conviction and Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), section III (Conviction by Civil Court). c. At no time did he received notice of any Article 15 or any other disciplinary action, following the loss of the 2 days, which were his days of on the weekend. He was never given any kind of board review or any notice that he had a right to appeal this action that was taken to discharge him. d. The fact that he has waited this long to ask for an upgrade is because he was never advised about his right to appeal this discharge decision. While researching other matters related to his current legal problems, he stumbled onto information that led him to conclude that he did suffer an injustice when he was railroaded out of the Army. 3. A review of the applicant’s service record shows: a. On 10 August 1977, he enlisted in the Regular Army. b. DA Form 2-1 (Personnel Qualification Record) shows he completed basic training at Fort Jackson, He completed advanced individual training as a Tactical STAL/MWAVE System Operator (26Q) at Fort Gordon, GA. He was subsequently assigned to Fort Richardson, AK after completion of his training. c. On 4 June 1978, he was found guilty by the District Court , of receiving and concealing stolen property, to wit: a Midland CB radio. The criminal complaint stated, “this complaint is based upon the statement of W.S. that he received the radio knowing it was stolen and subsequently soldier it to the applicant, telling him it was stolen. Further, the complaint is based upon the statement of the applicant that he purchased the radio knowing it was stolen.” He was sentenced to 2 days of civil confinement, a fine of $200.00, and have no similar violations. He opted not to appeal the finding of guilty. d. On 3 October 1978, he was notified of the commander’s intention to initiate separation action against him under the provisions of AR 635-200, paragraph 14-12a (Conviction by Civil Court), for his conviction by civil court for receiving and concealing stolen property. e. On 3 October 1978, after consulting with legal counsel, he requested consideration of his case by a board of officers and personal appearance before that board of officers. He elected not to submit statements on his own behalf and to have consulting counsel to represent him. He acknowledged: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable condition is issued * as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life f. Memorandum, SUBJECT: Advice by Defense Counsel, was sent to the applicant. Captain D.B. was assigned as his defense counsel. g. On 3 October 1978, the commander notified him of the initiation of separation action against him under the provisions of AR 635-200, paragraph 14-12a. The battalion commander recommended approval. h. On 14 November 1978, a psychiatric evaluation was completed on the applicant. He was diagnosed with inadequate personality. It was recommended that the applicant be separated from the service in the best interest of the Army. It was noted that if he continued to be under a lot of stress and demands he was prone to deteriorate more and not function well. i. On 6 December 1978, the separation approval authority directed a board of officers be convened to determine the appropriate disposition of the recommendation that the applicant be separated from the service prior to his estimated term of service for reason of civil conviction. j. On 8 December 1978, he accepted nonjudicial punishment for one specification of disobeying a lawful order. His punishment included reduction to private (PVT)/E-2, suspended for 90 days, forfeiture of $105.00 pay per month for 1 month, and 10 days extra duty. On 22 December 1978, the suspension of the punishment of reduction to PV2/E-2 was vacated when the applicant failed to arrive at the time prescribed for extra duty. The unexecuted portion of the punishment was duly executed. k. On 27 December 1978, a board of officers convened. The applicant was present during all open sessions of the board with his counsel and was afforded full opportunity to cross-examine adverse witnesses, to present evidence on his own behalf, and to testify in person or submit written statement. The board found that the applicant was convicted of civil offenses of a serious nature; his prior duty performance was unsatisfactory; and it did not appear from the record that the applicant can be effectively rehabilitated within the Army. The board recommended he be discharged from the service under other than honorable conditions. l. On 3 February 1979, consistent with the chain of command recommendation, the separation approval authority directed the applicant be discharged from service under the provisions of AR 635-200, paragraph 14-12a, and issued an under other than honorable conditions discharge. He further directed he be reduced to PVT/E-1. m. On 14 February 1979, he was discharged from active duty under the provisions of AR 635-200, chapter 14, section III and issued an under other than honorable discharge. His DD Form 214 shows he completed 1 year, 6 months, and 2 days of active service with 2 days of lost time from 25-26 August 1978. It also shows he was awarded or was authorized the Marksmanship Qualification Badge with Rifle Bar. n. On 1 September 2004, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge but administratively closed the case without action. AR 15-180 (ADRB) prohibits the ADRB from processing applications received after 15 years from the date of discharge or release from active duty. 4. On 21 November 2019, the Army Review Boards Agency Clinical Psychologist issued an advisory opinion. She opined that: a. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, there IS documentation to support the existence of a behavioral health condition at the time of discharge. b. The available records indicate that the applicant DID NOT meet medical accession or retention standards with respect to behavioral health diagnoses in accordance with AR 40-501 (Standards of Medical Fitness). c. The diagnosis of personality disorder is not a mitigating factor for the misconduct that led to his discharge. 5. The applicant was given the opportunity to respond to the medical advisory. He did not respond. 6. By regulation, when initially convicted by civil authorities, or action is taken which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement for one year or more, an individual will be considered for discharge. An under other than honorable conditions discharge certificate is normally appropriate for a member discharged for conviction by civil court. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, an advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, his civil conviction, a diagnosis of inadequate personality and the reason for his separation. The Board considered the review and conclusions of the advising official to include the statement that the applicant failed medical accession and retention standards and that the condition did not mitigate the misconduct that led to his separation. The Board found insufficient evidence of in- service mitigation for the applicant’s misconduct and he provided no evidence of post service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period or obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Conviction by Civil Court) states when initially convicted by civil authorities, or action is taken which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement for one year or more, an individual will be considered for discharge. An under other than honorable conditions discharge certificate is normally appropriate for a member discharged for conviction by civil court. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017104 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1