ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170003772 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Online Application) * Criminal Justice Information Services (CJIS) Arrest Record * Veteran Affairs (VA) Claim Decision * Offender Custody History 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 was erroneously discharged based on an offense that was not committed during his time in the military (14 October 1987 to 19 June 1990). There have been many years of trying to get this corrected and he was finally informed that this is the proper channel. Attached are the necessary documents that prove his case. They list his 2 year confinement at Joliet Correctional Institution. The confinement was the outcome of a traffic stop while home on leave in 1989 which lead to an outstanding warrant from 1984. He never committed any crime while he was in the Army which is the reason for his discharge. His recruiter was aware of the warrant prior to his enlistment and his intention was to serve his time in the Army and take care of the warrant upon being discharged honorably. He is guilty of being careless while on leave. 3. The applicant provided: * CJIS Arrest Record – arrested 17 April 1984 for residential burglary and burglary, 14 September 1989 for attempted burglary with a disposition of 2 years confinement and 10 March 1991 for theft of property 1st degree with a disposition of convicted * VA Claim Decision dated 8 January 2013 - condition of his discharge on 19 June 1990, prohibits payment of \/A benefits * Offender Custody History dated 11 January 2016 – on 14 September 1989 he was incarcerated in Joliet, paroled on 27 March 1990 and discharged on 27 March 1991 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 14 October 1987. b. His DA Form 4187 (Personnel Action) reflects his duty status changed as follows: * on 22 July - 20 August 1988, absent without leave (AWOL) * on 21 August 1988, dropped from the rolls * on 27 June 1989, confined civilian authorities * on 26 June 1989, returned to military control, reasons for retroactive duty status change is due to the personnel control facility personnel were in-transit several days before arriving and were required to verify personal data before an appropriate change could be prepared c. On 28 September 1989, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of chapter 14, paragraph 14-5, section II of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for conviction by civil court. The commander recommended that he receive a discharge under other than honorable conditions. The commander advised the applicant of his right to: * consult with counsel and/or retain civilian counsel at no expense to the government * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * submit statements in his own behalf * waive any of the above rights * submit a conditional waiver of his right to have his case heard before an administrative separation board d. On 11 October 1989, he acknowledged receipt of the immediate commander’s decision to recommend him for separation. He consulted with legal counsel. He waived his rights to have his case considered by an administrative separation board contingent on receiving a characterization of service or description of separation no less favorable than under honorable conditions. He requested legal counsel if the separation authority refused to accept his conditional waiver for a hearing before an administrative separation board. He intends to appeal the civil conviction; or adjudication as a youthful offender. He submitted statements on his own behalf. He acknowledged: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws * he understood if he received a discharge which is less than honorable, he may apply to the Army Discharge Review Board (ADRB) and/or the ABCMR to upgrade his discharge; however, he realized that consideration by either board does not imply that his discharge would be upgraded * he understands that he will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge e. On 11 October 1989, he submitted a statement on his behalf. He sincerely and with all honesty wants to have the chance to stay in the Army and try to continue correcting his life by serving his country. He admits that his entry was fraudulent, but the information from his past was given to his recruiter before he signed any papers. After taking the Armed services vocational aptitude battery test and scoring an 87, his recruited told him not to mention anything about the warrants and hopefully he would get through the Army with an honorable discharge. He would then be able to turn himself into civilian authorities which would probably get his case dismissed. He provided a detailed letter (detailed letter enclosed in packet). f. On 18 October 1989, the applicant's immediate commander recommended that he be separated under the provisions of AR 635-200, chapter 14, section II, for conviction by civil court with an other than under honorable discharge certificate from the U.S. Army prior to his expiration of his term of service. He recommended that rehabilitation and reassignment requirements be waived in accordance with (IAW) AR 635-200, paragraph 1-18d. g. On 18 October 1989, the intermediate commander recommended the applicant be separated from the service with an under other than honorable conditions discharge IAW AR 635-200, chapter 14, section II, for conviction by civil court. h. On 27 October 1989, the senior commander recommended approval for the separation and recommended disapproval his conditional waiver. i. On 16 November 1989, the separation authority disapproved his conditional waiver and referred his case to a hearing before a board of officers. j. On 5 December 1989, he submitted a statement with the possibility of remaining in the Army after being released from the Logan correctional institution. The circumstances concerning him entering the Army as well as the sudden AWOL status, he previously obtained prior to this conviction corresponds a great deal with one another. More than 7 years ago before any of this happened, he was very confused about life and everything he wanted out of it. His mother who was then diagnosed of having multiple sclerosis, progressed and eventually became worse, making her bed ridden and dependent upon everyone. During this time he was in his second year of college, and by having this along with so much else on his mind including peer pressure, he did something very unintelligent and foolish. He would like to know the possibilities of remaining in the Army. He didn’t realize the seriousness of it and ran away from his problems. He deeply regrets all of his actions. He provided a detailed letter (detailed letter enclosed in packet). k. Two letters of support: (1) On 5 December 1989, Mrs. X___ X___, Hanna City Work Camp, stated that he conducted himself in a mature manner. He worked his schedule without complaint, refusal or delay. He is very sociable and friendly. (2) On 26 January 1990, Mr. X___ X___, Horticulture Teacher, IL Department of Corrections, stated that the government should give the applicant another chance to get his life in order. He is a very intelligent young man that got caught up with the wrong group and later realized it. While in his classes, he exemplified a person that really wanted to get his life straighten out. l. Documents submitted on his behalf are as follows, letter of appreciation, letter of congratulations, and the diploma for the power generation equipment repairer course. m. On 22 January 1990, the applicant was notified to appear before an administrative discharge board. There is no acknowledgment from the applicant for receipt of notification of the administrative discharge board. n. On 9 April 1990, the board convened at Fort Knox, KY. The board found the applicant committed the misconduct as it appears in the notification letter to him. [Applicant] is undesirable for further retention in the military service because of his misconduct. In addition, they recommended that he be discharged from the service because of his misconduct, with issuance of an under other than honorable conditions. o. On 3 May 1990, the separation authority approved the finding and recommendations of the Board. He was separated under the provisions of AR 635-200, chapter 14, section II, for conviction by civil court with an under other than honorable conditions discharge. p. On 19 June 1990, the applicant was discharged from active duty under the provisions of AR 635-200 (Personnel Separations-Enlisted Personnel), chapter 14, section II, for conviction by civil court, with a under other than honorable conditions discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show he completed 9 months and 8 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge (M-16) 5. On 3 March 2001, the applicant requested an upgrade through the ADRB and on 8 June 2001, the ADRB determined the applicant was properly and equitably discharged. The request for a change in the character and/or reason of his discharge was denied. 6. On 8 November 2011, the applicant requested an upgrade through the ADRB and on 19 December 2011, the ADRB determined that his request must be directed to the ABCMR for consideration due to the statutory period for appeals prohibits the ADRB from processing applications received after 15 years from the date of discharge or release from active duty. 7. By regulation AR 635-200, action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record IAW 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, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. b. Paragraph 3-7a (Honorable Discharge) an honorable discharge is a separation with honor. 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. c. Paragraph 3-7b (General Discharge) 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. 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. 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, 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) AR20170003772 6 1