ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20170001386 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs (VA) Letter, dated 29 December 2016 FACTS: 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, in effect, he would like to have his character of discharge upgraded to honorable. His military service was otherwise honest, faithful, and meritorious. Just prior to enlisting in the Army, he went to court for a civil action and the judge told him if he enlisted in the Army, his civil action would be expunged. The applicant explains he joined the Army to serve his country and once the Army found out about his civil action, he received an under other than honorable conditions discharge. He was only doing what he believed the judge recommended to him at that time 3. The applicant provides a VA letter, dated 12 November 2016 in which the VA determined the applicant to be entitled to receive VA benefits based upon his periods of service. The VA considered his case to be an isolated incident and did not constitute as persistent misconduct as his service was otherwise honest, faithful and meritorious. The VA determined the applicant’s service periods from 31 January to 5 September 1974 and 1 November 1976 to 2 May 1977 to be honorable for their purposes. 4. A review of the applicant’s service record shows: a. He enlisted for 6 years into the Colorado Army National Guard (COARNG) on 31 January 1974. He completed active duty for training from 9 May to 5 September 1974 and he was awarded military occupational specialty (MOS) 91A (Ambulance Orderly). He attained the rank/grade of private/E-2. b. Orders Number 047-307, dated 13 September 1976, issued by Headquarters, Sixth United States Army, Presidio, CA, ordered the applicant to involuntary active duty in accordance with Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements), paragraph 12, effective 1 November 1976, due to an excessive pattern of unexcused absences within a one-year period. The applicant was ordered to complete 24 months and 4 days on active duty. c. On 12 November 1976, he was assigned to Company A, 9th Medical Battalion, Fort Lewis, WA. d. On 26 January 1977, resulting from a entrance national agency check, the applicant’s immediate commander received a DA Form 2496 (Disposition Form) through command channels notifying him the applicant was reported to have a possible fraudulent entry into the military for concealment of a prior arrest record. e. On 10 February 1977, the applicant provided a DA Form 2823 (Sworn Statement) to his command verifying he was the individual named in the Federal Bureau of Investigation record number 939-XXXG, dated 13 June 1974, detailing he was charged with and convicted of the assault and battery referenced in the report. The civil conviction(s) occurred before to the applicant entered military service. The applicant wrote (and initialed) the statement indicating he was fully aware that his admission would result in his receiving an undesirable discharge certificate upon discharge under the provisions of chapter 14, AR 635-200 (Personnel Separations – Enlisted Personnel). f. The applicant was advised of his rights by counsel on 16 February 1977. During that time, he initialed and signed a counseling form indicating that he waived consideration of his case by a board of officers, waived personal appearance before a board, and waived representation by military and civilian counsel. The applicant also indicated he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him. Additionally, he initialed the statement acknowledging his understanding that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. g. On 17 February 1977, the applicant’s immediate commander notified him of proposed separation proceedings against him under the provisions of AR 635-200, chapter 14, for the concealment of a civil conviction of assault and battery. The applicant, having already been advised of his rights by counsel, signed the acknowledgement of notification the same day. h. On 22 February 1977, the applicant’s immediate commander recommended him for separation. His intermediate commanders recommended approval on 23 February 1977, and he was approved for discharge by the separation authority on 22 April 1977. i. Orders 87-688, dated 28 April 1977, issued by Headquarters, 9th Infantry Division and Fort Lewis, WA discharged the applicant from the Regular Army effective 2 May 1977. k. His DD Form 214 shows he was discharged in accordance with AR 635-200, Chapter 14 for misconduct – fraudulent entry with an under other than honorable conditions discharge characterization of service. He completed 6 months and 28 days of total active. His DD Form 214 also shows was awarded a Marksman Marksmanship Qualification Badge with Rifle Bar. 5. By regulation, AR 135-91, a member fails to participate satisfactorily when he accrues a total of five or more unexcused absences from scheduled unit training assemblies in any one-year period. A member who fails to participate satisfactorily will be ordered to active duty for a period which when added to his prior service on active duty, active duty for training, annual training, or full time training duty, will total 24 months. 6. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 14 for concealment of a civil conviction. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general discharge if such is merited by the member’s overall record. 7. The Board should consider the applicant’s submission in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the pattern of misconduct as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his 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. AR 135-91, paragraph 12, in effect at the time, provides that a member fails to participate satisfactorily when he accrues a total of five or more unexcused absences from scheduled unit training assemblies in any one-year period. A member who fails to participate satisfactorily will be ordered to active duty for a period which when added to his prior service on active duty, active duty for training, annual training, or full time training duty, will total 24 months. 3. Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides that 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. Paragraph 5-38, in effect at the time, enlisted personnel who conceal an arrest record which did not result in civil court conviction at the time of enlistment or induction may be discharged. This policy permits the elimination of personnel who represent a potential undesirable element and will be used only when it is clearly apparent that an individual has concealed a serious arrest record. d. Paragraph 14-5c, of the version in effect at the time, provides an individual who concealed his conviction by civil court of a felonious offense normally will not be considered for retention. If information concerning the existence of a civil criminal record is required from the Federal Bureau of Investigation (FBI), the contact with the FBI must be made by Headquarters Department of the Army. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the 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) AR20170001386 5 1