ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170011780


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)
* DD Form 214 (Report of Separation 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 he is requesting a discharge upgrade based on the fact that the incident that resulted in his discharge had nothing to do with him.  He was falsely accused of a crime that he did not commit.  He was arrested and served time for a robbery that he did not commit.  There was no evidence other than a witness who picked him out of a lineup on the sole basis of his hair and height.  The police never recovered the stolen money and could not prove that it was ever in his possession.  He feels that he was used as a scapegoat.  This incident cost him his career and 6 years of his life in prison.  He currently has health conditions and his finances do not allow him to seek appropriate medical care.  A discharge upgrade would allow him to use the Department of Veterans Affairs (VA) medical services.  Initially, he was going to let it go, but his need for VA healthcare is the reason he is requesting an upgrade.

3.  Review of the applicant’s service records shows:  

	a.  He enlisted into the Regular Army on 1 April 1971.

	b.  On 13 May 1971, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 7 to 9 May 1971.

	c.  He was promoted to pay grade E-3 on 18 September 1971.  He served in Vietnam from 3 September 1971 to 30 April 1972.  

	d.  On 20 October 1972, he was convicted by a summary court-martial of one specification of being AWOL from 5 September to 2 October 1972.  He was sentenced to a reduction to E-2, a forfeiture of $100.00 pay per month for 1 month, and restriction and extra duty for 20 days.  On 24 October 1972, the convening authority approved the sentence and ordered it executed.  He was reduced accordingly on the same date.

	e.  On 9 February 1973, he accepted NJP for being AWOL from 6 to 7 February 1973.  

	f.  His service record contains: 

		(1)  Recommendation for Action Under Provisions of Army Regulation        (AR) 635-206 (Personnel Separations – Discharge -Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) memorandum, dated 8 January 1974, wherein the applicant’s immediate commander recommended the applicant be considered for action under AR 635-206 due to conviction by civil court.  The commander stated the applicant was assigned to that company on 27 November 1972.  Due to AWOL status and civil conviction, he had not performed his military duties as a petroleum handler for sufficient time to evaluate his worth.  His appearance and attitude were above average.  Final action recommendation was discharge with an undesirable discharge.  

		(2)  Statement of the Respondent (AR 635-206) memorandum, dated 9 January 1974, wherein after consulting with counsel, the applicant acknowledged the basis of contemplated action for his separation for conviction by civil court under the provisions of AR 635-206, its effects, and the rights available to him.  He also acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He waived his rights and elected not to submit a statement in his own behalf.

		(3)  Recommendation for Action Under Provisions of AR 635-206 memorandum, dated 10 January 1974, wherein the applicant’s chain of command recommended he receive an undesirable discharge.

		(4)  DA Form 2496 (Disposition Form), dated 21 January 1974, wherein the Adjutant General reiterated the applicant’s period of service and stated:

* the applicant was arrested on 28 December 1972 in Medina County, OH, while in AWOL status
* the applicant was again arrested on 15 March 1973 in Clarksville, TN, for armed robbery and convicted on 17 July 1973 and sentenced to serve 10 years at the Tennessee State Prison, where he was presently confined
* AR 635-206 provided that a service member would be considered for discharge when he had been initially convicted by civil authorities for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) was confinement in excess of 1 year
* the offense for which the applicant was convicted could result in confinement of 10 years if tried under the UCMJ
* he recommended an undesirable discharge be directed

		(5)  Memorandum to Eliminate Service Member Convicted by Civil Court, dated 23 January 1974, wherein the applicant’s commander was advised that the applicant was serving a 10 year sentence for armed robbery and the recommendation for approval for elimination from the Army under AR 635-206.

		(6)  memorandum of Discharge Under the Provisions of AR 635-206, dated 24 January 1974, wherein the separation authority directed the applicant’s discharge under paragraphs 33a and 37a, AR 635-206, and issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

		(7)  DD Form 214 showing he was discharged on 6 February 1974, accordingly.  The form also shows he completed 1 year, 9 months, and 25 days of net active service and 376 days of time lost.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  

	g.  On 15 December 1981, the Army Discharge Review Board determined he was properly discharged and denied his petition for a change in the type and nature of his discharge.

4.  By regulation (635-206), an individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ is death or confinement in excess of 1 year.  An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate.

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 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 serious, criminal nature of the misconduct which led to the applicant’s separation, 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 the time, sets forth the basic authority for the separation of enlisted personnel.  An individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him 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 1 year.  An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate.

3.  AR 635-200 (Personnel Separations Enlisted Personnel), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  The regulation states in:

	a.  Paragraph 3-7a (Honorable Discharge) – an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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.

	b.  Paragraph 3-7b (General Discharge) – a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but 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 (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.


ABCMR Record of Proceedings (cont)	 AR20170011780


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