ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20170010644 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 is an ordained minister and it does not look right in his life report to have an undesirable discharge for a mistake made as a kid. God has forgiven him and he has lived a good life for the last 50 years with no trouble and he worked hard as a retail manager. He does not want anything from the Board, except to change the type of discharge, so he will feel better about himself in his ministry. 3. The applicant provides his DD Form 214 showing his service from 6 June 1962 to 13 September 1963. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 8 June 1962. b. The DD Form 553 (Absentee Wanted by the Armed Forces), dated 11 February 1963, shows that the applicant was absent without leave (AWOL) on or about 9 January 1963. c. On 9 February 1963, the commander certified that the applicant was dropped from rolls by reason of desertion. d. On 12 February 1963, the applicant provided a statement from the Green County Jail, Eutaw, AL stating that he had been informed by X___ X___ X___, an Army investigator, investigating the burglary for which he was accused. The applicant stated in summary that on about 9 January 1963, he was AWOL from his unit at Fort Campbell, KY. He hitch-hiked to Memphis, TN, from there, he went to Nashville, TN and then on to Columbus, MS, where he stayed for five days. He met two men, they said they were going to Townley, AL to find work and asked him to join them. They hitch-hiked back and forth from Townley to Eutaw, AL and on 19 January 1963, they entered the crossroad grocery store by going through a side window. They took cigarettes, beer and money, proceeded to walk in the direction of Demopolis, AL. On the way they were picked up by the Demopolis City Police, confined and later charged with second degree burglary. e. The commanding general at Fort Rucker, Alabama informed the Commanding General at Fort Campbell, Kentucky by a Department of the Army message that the applicant was confined at the Green County Jail, Eutaw, Alabama, pending trial for burglary and grand larceny. f. The state of Alabama, Green County criminal division provided a transcript of the minutes for the case against the applicant. It certified that the applicant was convicted of the offense of burglary in the second degree and was sentenced to one year and one day at hard labor for the County of Greene on 1 April 1963. g. On 1 April 1963, the applicant provided a certified statement which states, he did not desire to appeal his conviction by civil court for second degree burglary. h. On 9 May 1963, the applicant's immediate commander requested that the applicant be discharged from the service prior to his normal expiration date of service under the provisions of Army Regulation (AR) 635-206, (Personnel Separations- Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), paragraph 20a, conviction by civil court. He recommended an undesirable discharge. i. Consistent with the chain of command recommendations on 23 July 1963, the separation authority approved the request for discharge and directed he be issued an undesirable discharge certificate and reduced to Private/E-1. j. The applicant was discharged from active duty on 11 September 1963 under the provisions of AR 635-206, paragraph 20a for conviction by civil court, SPN 284 - misconduct/convicted or adjudged a juvenile offender by a civil court during current term of active military service. His DD Form 214 shows his characterization is under other than honorable conditions. He completed 7 months and 2 days of net active service this period. He had 248 days of lost time. k. The Army Discharge Review Board (ADRB), by letter, on 9 July 1964, to the applicant informed him that after careful consideration of his military records and all other available evidence the Board denied his request for a change in the character and/or reason of his discharge. 5. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the serious civil criminal offense and confinement that lead 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. AR 635-206, (Personnel Separations- Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, and Desertion)) provided for the administrative separation or retention of enlisted personnel who have committed an act of misconduct. Paragraph 3, states that the character and type of discharge or separation and the reasons therefor will be determined by the discharge authority in accordance with these regulations. Paragraph 16. States that normally an individual discharged under this section will be given an Undesirable Discharge, unless the particular circumstances of the case warrant an Honorable or General Discharge. a. Paragraph 16, states that normally an individual discharged under this section will be given an Undesirable Discharge, unless the particular circumstances of the case warrant an Honorable or General Discharge. b. Paragraph 20a, states when initially convicted by civil authorities, or action taken which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of one year. If the offense is not listed in the Table of Maximum Punishments, Manual for Courts-Martial, or is not closely related to an offense listed therein, the maximum punishments authorized by the United States Code or the District of Columbia Code, whichever is lesser, will apply. 3. AR 635-5-1 (Personnel Separations-Separation Program Designators), states that the separation program number (SPN) code is used in statistical accounting to represent the reason for separation. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010644 4 1