ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170007413 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Eight character letters 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 young and was coerced (i.e. coerced) into criminal acts by older acquaintances (i.e. acquaintances) however he did engage in the criminal (i.e. criminal) act and was given a pardon. He has not been involved in any other criminal (i.e. criminal) acts. 3. The applicant provided eight character letters from friends he has known for over 20 years. They stated that he exhibited and shouldered the responsibility of a father, business owner, employer, tax payer, and member of society. He treats people the way he would want to be treated. Was privileged to have him as a boss and friend. He stood behind his work with integrity and honesty and we knew we could trust him with the repair and maintenance of our vehicles. [Applicant] has expressed his interest in working toward obtaining his veteran benefits for his years of service to our country. Strongly supports the [applicant] in these efforts, for he feels that each who has served should be recognized accordingly. He is true to his beliefs to God and our country. He is considered to be an honest upstanding citizen. Additional comments may be reviewed (detailed letters enclosed in packet). 4. Review of the applicant's service records show: a. He was inducted in the Army of the United States (U.S.) on 27 May 1969. b. His DA Form 268 (Report of suspension of favorable personnel actions), initial report dated 5 February 1970, states he was extradited to Athens, GA, he is in the hands of civilian authorities awaiting trial for armed robbery. He was confined to the El Paso County Jail, Colorado Springs on 17 January 1970 and was transferred to the Clark County Jail in Athens, GA on 25 January 1970. c. His DA Form 268, interim report dated 10 March 1970, states he is in the hands of civilian authorities pending trial on 1 April for armed robbery. He was extradited to Athens, GA on 25 January 1970. d. His DA Form 268, dated 12 June 1970, states he is in the hands of civilian authorities pending trial for armed robbery. e. His DA Form 268, dated 25 August 1970, states he was convicted of armed robbery (two counts) and robbery (one count) by the Georgia Superior Court, Clarke County, GA. On 16 June 1970, the [applicant] was ordered to be taken from the bar of the court to the jail of Clarke County, and be safely kept until a sufficient guard is sent from the State Penal System and be then taken to such penal institution for a period of 5 years. [Applicant] is currently pending discharge 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). f. On 25 November 1970, the separation authority discharged him from the military service of the U.S. with an undesirable discharge certificate, under the provisions of AR 635-206. He was discharged accordingly on 8 December 1970. g. His DD Form 214 shows he was discharged under the provisions of AR 635-206, and was issued separation program number 284 (misconduct). His service was characterized as under other than honorable conditions. He completed 7 months and 24 days of active service, and he had 322 days of lost time from 21 January to 8 December 1970. His DD Form 214 shows in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal. 5. 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. 6. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that was not warranted. Based upon the short term of service and the serious, criminal nature of the 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. 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 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. ABCMR Record of Proceedings (cont) AR20170007413 4 1