ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170000605 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * 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 after being discharged and now retired he is unable to get more than $149 a month. He loves his country and would do or say anything to prove this point. He states he was a very hyper person and was disrespectful to a Warrant Officer but he doesn’t feel that he should pay for this mistake for the rest of his life. He is so deeply remorseful and just needs help living a normal life with a few medical or financial benefits. He states he is retired and has no substantial money to care for himself and respectfully request his discharge be upgraded. 3. A review of the applicant’s service records shows: a. He was inducted into the Army of the United States on 15 January 1970. b. He accepted nonjudicial punishment on/ for: * 11 September 1970, for being absent without leave (AWOL) * 29 September 1970, for being AWOL * 8 December 1970, for failing to obey a lawful order * 11 December 1970, for absenting himself from his organization c. On 12 December 1970, he was convicted by Civil Court of automobile theft. d. On 25 February 1971, he was convicted by a special court-martial of one specification of being AWOL, from 12 December 1970 to 22 January 1971; one specification of disobeying a lawful order from a superior commissioned officer; one specification of breaking restriction; and another specification of being AWOL from 30 January 1971 to 14 February 1971. The court sentenced him to confinement and forfeiture of pay. The convening authority approved the sentence on 4 March 1971. e. On 16 March 1971, the applicants immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of Army Regulation (AR) 635-206 (Personnel Separations-Discharge Misconduct) by reason of Conviction by Civil Court. He advised the applicant of his rights. f. On 23 March 1971, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for conviction by civil court. He waived consideration of his case by a board of officers and a personal appearance before a board of officers. He further elected not to submit a statement on his own behalf. He acknowledge that: * he understood he could expect to encounter substantial prejudice in civilian life if a discharge under conditions other than honorable was issued to him * he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he many encounter substantial prejudice in civilian life g. On 23 March 1971, the applicant’s immediate commander initiated action to separate him from the Army under the provisions of paragraph 17 of AR 635-206. The commander listed the applicant’s AWOL time, arrest by civil authorities, conduct and efficiency as unsatisfactory, special court martial conviction and confinement. He recommended an Undesirable Discharge Certificate. h. On 29 March 1971, consistent with the chain of command’s recommendations, the separation authority approved the discharge action under the provisions of AR 635-206 and issued an Undesirable Discharge Certificate. i. He was discharged on 9 April 1971. His DD Form 214 shows he was discharged under the provisions of AR 635-206 by reason of conviction by civil court. His characterization of service was under conditions other than honorable. He completed 10 months and 26 days active service and he had 119 days of lost time. It also shows he was awarded or authorized the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge. 4. On 22 October 1974, the Army Discharge Review Board reviewed his case and denied his request for upgrade. 5. By regulation, discharge of individuals who, during their term of active military service, have been initially convicted by a civil court may be discharged. 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 reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple occasions of AWOL and other misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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) 635-206 (Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion), in effect at the time, provided for a separation of enlisted Soldiers who had been convicted by Civil Court. 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. The discharge of individuals who, during their term of active military service, have been initially convicted by a civil court, or adjudged youthful offenders, by domestic courts of the United States and its territorial possessions, or by a foreign tribunal, may be ordered in accordance with this section by discharge authorities designated in AR 635-200. · 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 or 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) AR20170000605 4 1