ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20170005703 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Verbatim Findings and Recommendations * DD Form 214 (Certificate of Release or Discharge 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, in effect, according to the administrative separation board proceedings, he is supposed to have a general discharge; however, his DD Form 214 reflects otherwise. 3. The applicant provides a copy of the verbatim findings and recommendations, signed by the president of the administrative separation board, appointed board members, and the board recorder. 4. A review of the applicant's service record shows: a. He enlisted in the Army on 30 January 1980. b. His duty status changed as follows: * from present for duty (PDY) to absent without leave (AWOL), effective 8 March 1980 * from AWOL to present without leave, effective 12 March 1980 * from PDY to AWOL, effective 23 March 1980 * * from AWOL to Dropped from Rolls (DFR), effective 21 April 1980 * from DFR to Confined Civil Authorities, effective 26 May 1980 c. DA Form 2496 (Disposition Form), dated 17 July 1981, submitted by the Staff Judge Advocate, reflects that an administrative separation board met on 2 July 1981 and considered evidence that the applicant pled guilty before the Guilford County, North Carolina, Circuit Court on 21 August 1980 to the charges of larceny, felonious larceny, and speeding and was sentenced to serve a minimum of four years in prison. The board determined that the applicant was unsuitable for further military service and recommended he be given a general discharge. d. It is unclear when and if the separation authority approved the administrative board’s findings and recommendations. e. The applicant's DD Form 214 reflects he was discharged on 7 August 1981, under the provisions of AR 635-200, section III, misconduct - conviction by civil court. The applicant was issued a separation designator program (SPD) code JKB, with his characterization of under other than honorable conditions. He completed 1 month and 3 days of active service. He had lost time from 8 February 1980 to 25 February 1980, from 8 March 1980 to 11 March 1980, and 23 March 1980 to 7 August 1981. 5. Army Regulation 635-200 states, action will be taken to separate a member for misconduct such as civil conviction. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 6. The Board should consider the applicant's submissions 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 when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to a pattern of misconduct, 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. 5/30/2019 X X CHAIRPERSON Signed by: CUNNINGHAM.GARY.L.1229687073 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 2-2c (3) states the commander will advise the Soldier of his right to a hearing before an administrative separation board under section III if he had 6 or more years of total active and reserve service on the date of initiation of recommendation for separation. b. Paragraph 2-6a (1)(a) states when the board has recommended separation for misconduct, the separation authority may direct separation of the Soldier for misconduct, except for Soldiers referred to in paragraph 1-19f. c. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. 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 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.