ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170002702 APPLICANT REQUESTS: * Reconsideration of his other than honorable conditions discharge be upgraded to general under honorable conditions * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Applicant’s New York State Driver’s License * Veterans Health Administration card FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001064911 on 14 February 2002. 2. The applicant states he needs his discharge to be upgraded to general under honorable conditions so he can qualify for Veteran Affairs (VA) benefits. 3. The applicant provides: * DD 214 that shows he was discharged under other than honorable conditions on 6 December 1977 * New York state driver license and Veterans health administration card show identification 4. A review of the applicant’s service records shows: a. On 29 November 1973, he enlisted in the Regular Army. b. He accepted non-judicial punishment (NJP) under Article 15 on/for: * 30 August 1974, insubordinate conduct * 31 July 1975, insubordinate conduct * 7 January 1976, uttering worthless checks * 17 May 1976, insubordinate conduct c. On 2 June 1976, he was arrested by civilian authorities for possession of marijuana, over 4 ounces. d. He was reported absent without leave (AWOL) from 18-23 June 1976, according to his DA Form 2-1 (Personnel Qualification Record). e. On 22 June 1976, he was arrested for knowingly and intentionally while in the course of committing theft of good and lawful U.S. currency, from X___ X___ and X___ X___, with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely, a shotgun, threaten and place X___ X___ in fear of imminent bodily injury and death. He was indicted on 10 November 1976. Record is void of results from this case. f. On 22 February 1977, he was convicted by the District Court of Bell County, TX, for possession of marijuana and sentenced to not less than two nor more than three years confinement. In his waiver of right to file a motion for new trial and right to appeal he stated: * he understood he has the right to file a motion for trial within 10 days from the date of his conviction * he waived and accepted as final judgment of conviction g. On 6 June 1977, the unit commander advised the applicant of his contemplated action to initiate his separation under the provisions (UP) of Army Regulation (AR) 635-206 (Personnel Separations – Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for conviction by civil court. h. On 15 August 1977, the command was notified the applicant was released on parole to Chicago, IL, on 25 July 1977. He was reported AWOL from 25 July 1977 until 30 August 1977 when he surrendered at Fort Sheridan, IL. i. On 20 September 1977, the applicant was advised by counsel of the basis for contemplated separation action (UP) of AR 635-206 for conviction by civil court. He acknowledged the following: * requested consideration of his case by a board of officers and a personal appearance * understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * that he may expect to encounter substantial prejudice in civilian life * he did not intend to appeal his conviction for possession of marijuana j. On 28 September 1977, the command recommended the applicant be eliminated from the service. k. On 14 October 1977, he waived same said rights from above. * requested consideration of his case by a board of officers and a personal appearance * understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * that he may expect to encounter substantial prejudice in civilian life * he did not intend to appeal his conviction for possession of marijuana l. On 11 November 1977, the separation authority approved the separation action and ordered the applicant be discharged UP of paragraph 33a, AR 635-206, reduction to PVT/E-1, and issued an under other than honorable conditions discharge certificate. m. On 6 December 1977, the applicant was discharged. His DD Form 214 show she was discharged with an under other than honorable conditions discharge for conviction by civilian authorities in the rank of PVT/E-1. His total active service time is 2 years, 11 months, and 7 days. He has a total of 396 days lost. He was awarded the Marksmanship Badge (Rifle), Expert (Grenade), and Sharpshooter (Pistol). 5. The applicant applied to the Army Discharge Review Board and the board denied him on 23 April 1980. 6. By regulation, applicants do not have a right to a hearing before the Army Board for Correction of Military Records (ABCMR). The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. By regulation, Army Regulation 635-206 (Personnel Separations – Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)), Paragraph 33 states 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 one year. 8. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to a pattern of misconduct, some of which involved serious criminal behavior, 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a(1) 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 for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member. b. Paragraph 1-13a(2) states An honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial. When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member. c. Paragraph 1-13b states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. 4. Army Regulation 635-206 (Personnel Separations – Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)), in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied: (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement n excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude. An undesirable discharge was normally considered appropriate. 5. 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. ABCMR Record of Proceedings (cont) AR20170002702 4 1