ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20170008678 APPLICANT REQUESTS: reconsideration of his earlier request to upgrade 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) * Notification of Elimination from Service letter * Character letter from a first sergeant (1SG) * Commander's Statement * Exclusion from Fort Bliss Military Reservation letter * Army Review Boards Agency (ARBA) response letter, dated 9 June 2017 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150003357 on 6 October 2015. 2. The applicant states he would like a change in type of discharge, from under other than honorable conditions. He was given leave in between a change of command at his headquarters company in Fort Bliss, TX. While on leave he got into problems at home in Harrison, TX. When he returned to Fort Bliss his unit commander and 1SG were gone, there was no one left to vouch for his character. The temporary unit commander was a second lieutenant who was unaware of his situation and his upstanding character, and discharged him. Through various ways he has tried to overturn this discharge for over fifteen years. He cannot receive full veteran's benefits, despite of his exceptional service and medical illnesses in/from Vietnam. 3. The applicant provides the following: a. Notification letter, dated 12 April 1972, which recommends initiation of elimination from the service under provisions of Army Regulation (AR) 635-206 (Personnel Separations) for reason of conviction by civil court. a. b. Receipt acknowledging notification of initiation of separation on 20 April 1972, which advised him of his rights. c. Character letter from his 1SG which states, the applicant never caused any trouble and that he was one of the best workers in his unit. He worked 18 to 20 hours days and he never complained he did a superior job. d. Statement from the unit commander, dated 8 May 1972, stating that he feels that the civil convictions adjudged against the applicant is adequate grounds for discharge from the service. His commander also states applicant was never present for duty during his command so his conduct or efficiency ratings were unknown. e. Exclusion from Fort Bliss military reservation, dated 9 June 1972, which states he could not re-enter the installation or he would be fined and imprisoned or both. f. Letter, dated 9 June 2017, from the Case Management Division at ARBA notifying him that his application was unsigned. He was put in suspense for 30 days until receipt of signed application. The application was signed by applicant dated 23 February 2017. 4. Review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 16 May 1968 for 3 years. b. On 12 November 1968, he accepted nonjudicial punishment for dereliction in performance of his duties. He was drinking while on duty on 4 November 1968. c. On 17 January 1969, he was honorably discharged to immediately reenlist. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. d. On 18 January 1969, he reenlisted in the RA. He served in Vietnam from 3 April 1969 to 21 March 1970. e. On 28 August 1970, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 4 June 1970 to 11 July 1970. He was sentenced to be confined at hard labor for 99 days and to be reduced to the grade of private (E-1). The punishment was suspended. f. On 14 June 1971, an FBI Report reflects the applicant was arrested on 3 June 1971, for aggravated assault and possession of a prohibited weapon. It also shows that on 5 August 1971, he was arrested for assault with intent to commit murder. g. On 23 February 1972, the applicant accepted the judgement of guilty and conviction for aggravated assault, and destroying property of another. He was a. sentenced to pay a fine of $500 and confinement in the county jail for two years. It was further ordered by the Court that the imposition of the sentence was suspended and that the applicant be placed upon probation for the period of three years. h. On 12 April 1972, the applicant was notified of elimination action from the service under AR 635-206 for reason of conviction by civil court. i. On 20 April 1972, the applicant indicated he had not filed an appeal of his civil conviction and had no intention to do so. j. On 20 April 1972, the applicant was advised of his rights for the contemplated action to separate him for conviction by civil court, in accordance with AR 635-206. He did not submit statements on his behalf. He waived his right to appointment of military counsel to represent him. k. On 20 April 1972, the applicant acknowledged he understood that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many and/or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. He retained a copy of his election of rights. l. On 27 April 1972, the unit commander recommended the applicant be discharged in accordance with AR 635-206 for civil conviction. The intermediate commander reviewed the proposed discharge action and recommended approval with an undesirable discharge. m. On 12 May 1972, the separation authority approved the applicant’s discharge under the provisions of Section VI, AR 635-206 for civil conviction, separation program number 284, and ordered the applicant be furnished an Undesirable Discharge Certificate. n. On 9 June 1972, the applicant was discharged accordingly under the provisions of AR 635-206 separation code 284, with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 1 year, 4 months, and 15 days of active service with 644 days of lost time. He was awarded or authorized: * Vietnam Service Medal with 2 bronze service stars * Republic of Vietnam Campaign Medal with "1960" Device * Combat Infantryman Badge * Presidential Unit Citation * Meritorious Unit Citation * Vietnam Gallantry Cross * 5. Army Regulation 635-206 set forth the basic authority for the separation of enlisted personnel for misconduct (conviction by civil court, and absence without leave). It 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. 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 relief was not warranted. Based upon the pattern of misconduct, some of which was extremely seriously and dangerous in nature, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: 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. 5/10/2019 X CHAIRPERSON Signed by: 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) in effect at the time: a. Set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). It 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. b. An individual discharged for conviction by civil court normally would be furnished an under conditions other than honorable discharge certificate except that an honorable or general discharge certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case. 3. AR 635-200 (Personnel Separations Enlisted Personnel) provided for the separation of enlisted personnel. It stated: a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. The honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 1. 5. 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.