ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20160019739 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States). 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 that he wants to be buried at the national cemetery and wants to receive medical care for his cancer. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 24 January 1980. b. On 23 September 1981, he was convicted in civil court of conspiracy to commit murder. The court sentenced him to confinement of not less than 2 years and no more than 10 years. c. On 30 September 1981, the applicant's immediate commander notified him that a discharge action was being initiated against him for his civil conviction in accordance with chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). d. The record is void of the applicant’s signed election of rights. * chain of command dispatched a certified letter to the applicant with defense counsel's letter on 16 October 1981 * after 30 days, there was no reply from applicant (17 November 1981) * * chain of command dispatched an additional certified letter with defense counsel letter on 16 December 1981 (with 30 days suspense to reply) * received no reply from applicant on 16 January 1982 * chain of command proceeded with elimination procedures on 18 January 1982 e. His chain of command recommended approval of the applicant’s discharge. f. On 28 January 1982, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 14. He would be issued an Under Other Than Honorable Conditions Discharge Certificate. g. On 11 March 1982, he was discharged from active duty under the provisions of AR 635-200, Chapter 14. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a characterization of service of under other than honorable conditions. He completed 1 year, 2 months, and 16 days of active service. It also shows he was awarded or authorized the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar. 4. 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 is death or confinement for one year or more. 5. 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 reviewing the application and all supporting evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the seriousness of the misconduct which resulted in the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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, 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) 635-200 (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 of obligated service with due consideration or the member’s age, length of service, grade and general aptitude. b. Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. It is issue to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12a (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 is death or confinement for one year or more. 3. 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 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 1. might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.