ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  17 June 2019

	DOCKET NUMBER:  AR20160019461

APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 ( Armed Forces of the United States Report of Transfer or Discharge)

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 he was very young and came from an abusive home and had to leave.  He had nowhere else to go so he joined the Army.

3.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 2 December 1966.

	b.  He received nonjudicial punishment on/for:

* 25 August 1967, for being apprehended by civilian police without a pass; his punishment consisted of reduction to E-2
* 23 October 1967, for being absent without leave (AWOL) from 2 October 1967 to 10 October 1967
* 16 January 1968, for willfully disobeying a noncommissioned officer

	c.  On 3 January 1968, he was convicted by special court-martial of two specifications of AWOL from 16 November 1967 to 17 November 1967 and 18 November 1967 to 7 December 1967 and one specification of breaking restriction.  His sentence included confinement at hard labor for 6 months and forfeiture of $66 pay per month for 6 months.
	d.  On 11 April 1968, he was convicted by special court-martial of three specifications of AWOL from 7 February 1968 to 21 February 1968, 26 February 1968 to 27 March 1968 and 1 April 1968 to 2 April 1968.  His sentence included confinement at hard labor for 6 months and forfeiture of $66 pay per month for 6 months.

	e.  On 17 October 1968, he was convicted by civilian court of second degree burglary.  He was remanded into the custody of the sheriff of Los Angeles.

	f.  On 4 February 1969, the applicant's commander notified the applicant of his intent to eliminate him from the service 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)).

	g.  On 20 March 1969, he was convicted by a special court-martial of one specification of AWOL from 10 May 1968 to 3 March 1969.  The court sentenced him to confinement at hard labor for five months and forfeiture of pay.   The convening authority approved the sentence on the same date.

	h.  On 13 February 1969, he acknowledged receipt of the notification of separation document.  He indicated he was convicted of second degree burglary and he did not intend to appeal the conviction.

	i.  On 20 March 1969, consistent with the chain of command recommendations, the separation authority approved the discharge under the provisions of AR 635-206 and issued an Undesirable Discharge Certificate.

	j.  The applicant was discharged on 27 May 1969.  His DD Form 214 shows he was discharged under the provisions of AR 635-206 with an under other than honorable conditions characterization of service.  His DD Form 214 also shows he completed 1 year, 3 months, and 26 days of active service.  He was awarded or authorized:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  By regulation, an individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him 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 in excess of 1 year.  An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate.

6.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.
BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the record, the Board agreed that the applicant's discharge 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.


	 
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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  An individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him 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 in excess of 1 year.  An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate.

3.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel:

	a.  Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade and general aptitude.

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability.

	c.  Chapter 14 of this regulation states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

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 based on 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	AR20160019461


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