IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20170004475 APPLICANT REQUESTS: Correction of his record to show his under other than honorable conditions discharge was upgraded to some other characterization of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 3 September 1962 and 16 April 1965 * Three character reference letters FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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 his infraction occurred many years ago when he was a young man just leaving home. He was irresponsible then, and now he has grown into a mature man with much better judgement. Please forgive his infraction and render an upgrade to his under other than honorable conditions discharge. 3. A review of the applicant’s official records shows: a. On 17 June 1960, the applicant enlisted in the Regular Army (RA). b. On 3 September 1962, the applicant was honorably discharged for immediate reenlistment. He completed 2 years, 2 months, and 18 days of net service. c. On 4 September 1962, the applicant reenlisted in the RA. d. On 11 March 1965 – (1) The applicant’s immediate commander completed a memorandum, subject: Appeal from Civil Court Conviction, showing the applicant was convicted of auto theft (2 counts) by the Superior Court of Columbus, GA on 5 March 1965, and was sentenced to 2 years in the GA penal system on the first count and 12 months on the second count. The applicant did not intend to appeal the conviction. He understood the information would be used in connection with a possible discharge under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Misconduct (Fraudulent Entry, Conviction by Civil Court, Absent Without Leave, Desertion). He also understood the type of discharge to be awarded would be in most cases under other than honorable conditions. (2) The applicant’s immediate commander initiated discharge proceedings under the provisions of AR 635-206 for a civil conviction and recommended an undesirable discharge. e. On 15 and 17 March 1965, the applicant’s intermediate and senior commander recommended approval and the issuance of an undesirable discharge certificate. f. On 24 March 1965, the separation authority approved the applicant’s discharge under the provisions of AR 635-206 with the issuance of an undesirable discharge certificate. g. On 15 April 1965, Special Orders Number 87, issued by Headquarters, U.S. Army Infantry Center, ordered the applicant discharged by reason of conviction by a civil court. h. On 16 April 1965, the applicant was discharged with an under other than honorable conditions characterization of service. He completed 2 years, 5 months, and 14 days of net service with 2 years, 2 months, and 18 days of other service. He was awarded or authorized the: * Driver and Mechanic Badge * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * First Class Field Artillery Gunner Badge 4. The applicant provides three character reference letters attesting to him being loyal, committed, reliable, honest, law-abiding, hardworking, kind and compassionate. 5. AR 635-206 prescribes the standards and procedures for processing cases of individuals who, have been initially convicted. An individual shall be considered as having been convicted or adjudged a juvenile offender even though an appeal is pending or is subsequently filed. The discharge or recommendation for discharge recommendation for discharge, however, will not be effected or submitted until the individual has indicated in writing that he does not intend to appeal the conviction. An individual discharged under this section will be given an undesirable discharge unless the particular circumstances warrant an honorable or general discharge. 6. 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. 7. AR 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d states 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 1-9e states 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. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, the character references he provided, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors, but agreed that the character references he provided demonstrate that after his military service he has been a hard- working and valued member of his community, which supports a favorable clemency determination. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to under honorable conditions (general). ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 16 April 1965 to show his service was characterized as under honorable conditions (general) and he held the rank/grade of private first class/E-3 with a date of rank of 14 February 1962. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. AR 635-206 (Personnel Separations – Misconduct (Fraudulent Entry, Conviction by Civil Court, Absent Without Leave, Desertion) prescribes the standards and procedures for processing cases of individuals who, have been initially convicted. An individual shall be considered as having been convicted or adjudged a juvenile offender even though an appeal is pending or is subsequently filed. The discharge or recommendation for discharge recommendation for discharge, however, will not be effected or submitted until the individual has indicated in writing that he does not intend to appeal the conviction. An individual discharged under this section will be given an undesirable discharge unless the particular circumstances warrant an honorable or general discharge. 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 on the basis of 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. 4. AR 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d states 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 1-9e states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004475 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1