ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20170002824 APPLICANT REQUESTS: upgrade of his other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Report of Separation from Active Duty) 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 joined the service to serve in Vietnam. He was injured during advanced individual training when a weapon discharged in his face causing injury resulting in tooth loss. a. After completion of training he was sent to Alaska instead of Vietnam and served as a firefighter instead of an Infantryman. He was granted leave and returned home. While on leave he was arrested for stealing a vehicle and alcohol consumption. He was placed on probation and released back to his military unit. After returning to his unit, the chaplain informed him that his sister had been killed in a car accident. He was granted emergency leave. During the course of his leave he was drinking with his friends and was arrested for disorderly conduct. b. The second arrest caused his probation to be revoked which resulted in incarceration for 2 years. During this period of incarceration, he was discharged from service. c. He is no longer on drugs and a changed person with an improved life. He has a loving wife and family and has been employed for forty years and served as the head maintenance director. He regrets the decisions he made during his youth. a. 3. A review of the applicant’s service records shows the following: a. He enlisted into the Regular Army on 3 September 1971. b. He served in Alaska from 25 February 1972 to 1 February 1973. c. On 4 April 1973, he received nonjudicial punishment for being absent without leave from 24 February 1973 to 13 March 1973 d. On 5 June 1973, he received a DA Form 268 (Report for Suspension of Favorable Personnel Actions) for being dropped from the rolls. e. On 2 July 1973, the applicant was apprehended by civil authorities for disorderly conduct and was incarcerated in the Indiana State Reformatory. He was found guilty and sentenced to 90 days in county jail. He escaped and was re-apprehended on 11 July 1973 and was charged with automobile theft, arson, breaking and entering (two counts), motorcycle theft, and jail breaking. f. On 18 July 1973, his commander received information that the applicant was confined by civil authorities in Indiana. Separation proceedings were considered under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without leave or Desertion). g. On 1 March 1974, his commander notified him of his intent to eliminate the applicant from the service under the provisions of AR 635-206. h. On 11 April 1974, he acknowledged receipt of the notification of separation document. He indicated he did not intend to appeal the conviction or adjudication. He waived his right to appear before the board of officers and declined to submit a personal statement on his behalf. He waived his right for counsel. He also acknowledged that he would be ineligible for any or all Veteran benefits as a result of the issuance of an other than honorable discharge. i. On 24 April 1974, his immediate commander initiated a separation from service under the provisions of AR 635-206. He states the applicant was tried by circuit court and convicted of second degree burglary. He was sentenced to 2 to 5 years in jail. j. On 1 May 1974, the separation authority approved the applicants discharge under the provisions of AR 635-206. The applicant would be reduced to the grade of E-1 and issued an Undesirable Discharge Certificate. k. On 10 May 1974, he was discharged from active duty with an under other than honorable condition discharge. He completed 1 year, 1 months, and 16 days of active service. His DD Form 214 shows he was awarded or authorized: a. * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) 5. By regulation, 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 1 year. An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate. 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 to include the DoD guidance on liberal consideration, the Board determined that relief was not warranted. Although the applicant speaks of changing his life after the misconduct, the Board found that the applicant failed to provide corroborating evidence of that through statements of family, friends or employers. For that reason, the Board concluded that the characterization of service received at the time of discharge was appropriate and 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. 5/10/2019 CHAIRPERSON Signed by: 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 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without leave or Desertion), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. 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 1 year. An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate. 3. AR 635-200 ( ), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. Paragraph 3-7b (General Discharge) states 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. 4. 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, 1. 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.