ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 June 2019

	DOCKET NUMBER:  AR20170011196


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement
* 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 committed no crime against the military.  He was charged with absent without leave or desertion when it was not his fault.  He was excited to serve his country.  While he was on leave en route to advanced individual training, he was approached by detectives who informed him that a woman reported he had robbed her a week prior.  It was not in his character to rob anyone.  He was arrested and placed under arrest for a crime he did not commit.  He was in jail for 24 months without bail waiting for trial.  He made attempts to get help from the Army, but they were ignored.  He served 3 years and 6 months before he was paroled for good conduct.  He has felt shame and embarrassment for many years as a result of what happened.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 1 February 1968.

	b.  He was convicted by civil court on 16 January 1970 of robbery and sentenced to 10 years imprisonment.

	c.  On 6 April 1973, his immediate commander notified the applicant of his intent to separate him under the provisions of paragraph 6, Army Regulation (AR) 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion).  He was notified he could receive an Undesirable Discharge Certificate.

	d.  On 6 April 1973, he was advised of the basis for contemplated action to accomplish his separation under the provisions of AR 635-206.  He waived consideration of his case by a board of officers and elected not to submit statements on his own behalf.  He also waived representation by counsel.  He understood that:

* he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him
* as a result of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and state laws
* he may expect to encounter substantial prejudice in civilian life

	e.  On 2 May 1973, his immediate commander initiated action to separate the applicant under the provisions of AR 635-206 and recommended an Undesirable Discharge Certificate be issued.  The reason for his proposed action was the applicant was arrested on 16 April 1968 in Alabama.  He was tried and convicted of the crime of robbery and sentenced to 10 years in prison.  He was currently serving his sentence.

	f.  Consistent with the chain of command recommendations, on 17 May 1973, the separation approval authority approved the discharge under the provisions of 
AR 635-206 and directed an Undesirable Discharge Certificate be furnished.

	g.  He was discharged from active duty on 20 July 1973 with an under conditions other than honorable characterization of service under the provisions of chapter 14, AR 635-200 (Personnel Separations – Enlisted Personnel) (AR 635-200 superseded AR 635-206).  His DD Form 214 shows he completed 4 months and 16 days of active service.  It also shows he was awarded or authorized the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar (M-14).

4.  By regulation, 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 an individual will be considered for discharge by reason of misconduct.

5.  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 there is insufficient evidence to grant relief.  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 record, 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.



ADMINISTRATIVE NOTE(S):

Not Applicable

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 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, Absence Without Leave or Desertion), in effect at the time, set forth the basic authority for the separation of enlisted personnel for the offenses listed above.  It states, in pertinent part, 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 an individual will be considered for discharge by reason of misconduct.

3.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an 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.

	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.  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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170011196


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