ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170005589 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * ten (10) character letters * reason for separation unit letter * 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 did not act appropriately; however, his discharge was inequitable because it was based on one isolated incident in approximately 30 months of service with no adverse action. His discharge was also improper because his legal counsel gave him erroneous legal advice when he said that the 180 day punishment would not affect his military career. His personal request was to do the 180 day sentence at the end of his expiration term of service not before. The applicant provided a four page hand written detailed letter (detailed letter enclosed in packet). 3. The applicant provided 10 character letters from friends, pastors, and employers. They stated that he is a good neighbor, considerate, and cooperative in neighborhood events. He displays a team attitude and communicates effectively with others. He is an outstanding gentleman with an immense passion and love for Christ. He has helped our congregation build homes for Habitat for Humanity and serves faithfully on our collection team. He consistently exceeds expectations with his interpersonal skills, problem-solving abilities, and work ethics. He is also described as a hard worker with a good attitude and a gentle, earnest spirit. 4. Review of the applicant's service records show: a. He enlisted in the Regular Army on 15 May 1974. He served at Fort Benning, GA. b. He accepted non-judicial punishment under the provisions of Article 15 on/for: * 21 February 1975, failed to go at the time prescribed to his place of duty and disobeyed a lawful order, 14 days extra duty * 29 May 1975, violated USAIC Supplement 1 to Army Regulation (AR) 670-1 (Wear and Appearance of Army Uniforms and Insignia) by wearing his duty uniform off-post to Burger King, forfeiture of $25 and days extra duty * 18 June 1975, failed to go at the time prescribed to his place of duty, reduction to private (E-1) and forfeiture of $80 c. On 12 September 1975, the applicant was arrested for obtaining a controlled substance by forgery and possessing less than one ounce of marijuana. On 20 February 1976, he plead guilty and the Muscogee Superior Court sentenced him to 12 months for each count to be served concurrently. d. On 29 April 1976, the applicant's immediate commander notified the applicant of his intent to initiate separation actions under the provisions of paragraph 6, AR 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), for conviction by a civil court. The applicant acknowledged receipt of the commander’s proposed separation action. e. On 29 April 1976, he consulted with legal counsel and he was advised of his command's intent to separate him from the Army under the provisions of AR 635-206, with an undesirable discharge. The applicant was advised of the basis for the contemplated separation action, its effect, and the rights available to him. He requested consideration of his case by a board of officers. He submitted a statement on his behalf. He requested military and civilian legal counsel. He did not appeal his civil court conviction. 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 undesirable discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws f. On 10 May 1976, the applicant’s immediate commander initiated action to eliminate him from the Army under the provisions of paragraph 33a, AR 635-206, with an undesirable discharge certificate. g. On 17 May 1976, the applicant’s intermediate commander recommended to eliminate him from the Army under the provisions of AR 635-206, with an undesirable discharge certificate, and on 1 June 1976, the senior commander recommended approval for the separation. h. On 13 July 1976, a board of officers convened at Fort Benning, GA, and found the applicant was undesirable for further retention in the military service because of his conviction by a civil court and the offense of forgery to obtain a controlled substance and possession marijuana. The board recommended he be discharged from the service because of misconduct (conviction by civil court) with an undesirable discharge certificate. i. On 16 July and 13 September 1976, through counsel, the applicant requested a reconsideration of the findings and recommendations. j. On 5 October 1976, the separation authority approved the board of officers findings and recommendations. k. On 27 October 1976, he was discharged under the provisions of AR 635-206, paragraph 33a, conviction by civil court. He completed 1 year, 11 months and 15 days of active service, and he had 180 days of lost time from 17-19 February and 20 February to 15 August 1976. His DD Form 214 shows he was awarded or authorized: National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge (M-16). 5. On 18 January 1982, the applicant requested an upgrade through the ADRB and on 24 August 1982, the ADRB determined the applicant was properly discharged. The request for a change in the character and/or reason of his discharge was denied. 6. By regulation AR 635-206 provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. 7. 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, the Board found the relief was not warranted. 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. Based upon the multiple offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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. 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 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). 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 in 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170005589 4 1