ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR2017001102 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 or Dismissal from the Armed Forces of The United States) * DD Form 214 (Armed Forces of The United States Report of Transfer or Discharge) * Self-authored Statement * Two Character Letters 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 would like an upgrade of his under other than honorable conditions discharge to general under honorable conditions. He also apologizes for his actions and asks for the Board to consider his request. 3. The applicant provides: a. A self-authored statement in support of his application which states he would like to personally apologize to the Army for not being what it wanted him to be. He tried to get it right 3 times. He is asking for a review of his discharge in order to feel that what he did was not all bad and he really did not deserve the discharge he was given from the Army (see attached statement). b. A Reference letter from X., dated 3 November 2011, which states he has known the applicant and his wife for about five years and they have been a good friend to him and her family. He is always willing to help his friends, family and neighbors when called upon, in spite of all his medical conditions and he can be relied on and is a very trustworthy person. c. A Reference letter from X., dated 6 November 2011, which states the applicant has been a close friend of six years and he is a person you can always depend on. He always says, call me if you need anything. He means a lot to me, because I am 90 years old and a widow who lives alone. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 7 December 1963. b. On 16 September 1963, court-martial charges were preferred against him for one specification of being absent without leave (AWOL) from 6 September 1963 to 10 September 1963. c. On 18 September 1963, the command initiated an investigation on the applicant for fraudulent enlistment. It was suspected that he was in the Navy between 5 October 1961 to 12 June 1962. d. On 18 September 1963, the applicant provided the command with a statement regarding his prior service in the Navy. He states he was unable to adapt to Navy life and went AWOL. He was absent from 3 April 1962 to 27 March1962. He eventually turned himself in and was evaluated by mental hygiene. He was found to be unsuitable and unable to adjust to military life. He was tried, convicted and sentenced to 45 days in the Brig. He was discharged from the Navy on 12 June 1962. e. The applicant consulted with legal counsel and was advised that the commander was recommending him for discharge under Army Regulation 635-206 (Personnel Separations - Discharge Misconduct (Fraudulent Entry, Conviction By a Civil court, Absent Without Leave (AWOL), Desertion) for Concealment of Prior Service. During his consultation he acknowledged: * he could have a hearing before a board of officers, or waive this privilege and submit a written statement own his on behalf * he could employ civilian counsel at no expense to the United States Government if he so desired * he could receive an undesirable discharge issued under conditions other than honorable * he could be deprived of many or all rights as a veteran under both Federal and State laws * he could encounter substantial prejudice in civilian life * he voluntarily signed this statement of his own free will and retained a copy for his records f. Consistent with the chain of command recommendations, the separation authority approved the discharge for fraudulent entry with an Undesirable Discharge Certificate and reduction to the lowest enlisted pay grade. g. On 22 November 1963, he was convicted before a special court-martial for one specification for being absent without leave from 3 November 1963 to 10 November 1963. He was sentenced to forfeiture of $55.00 per month for 6 months and confinement at hard labor for 3 months. h. On 7 December 1963, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 6 months and 13 days of active service. He was awarded or authorized the Marksmanship Qualification Badge M-1 Rifle. It also shows he had lost time from: * 6 September 1963 to 9 September 1963 * 3 November 1963 to 10 November 1993 * 21 November 1963 to 11 [sic] December 1963 i. On 1 April 1969, he made an appeal to the Army Discharge Review Board. The Board denied his appeal on 6 May 1969, stating he was properly discharged. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 6. By (AR) 635-206 (Personnel Separations - Discharge Misconduct (Fraudulent Entry, Conviction By Civil Court, AWOL, Desertion), a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 7. 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 and letters of support 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 evidence of post-service achievements for the Board to consider. Based upon the record of being AWOL and having a fraudulent enlistment, the Board agreed that the applicant's discharge characterization was 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. 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. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001102 4 1