ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170012000 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). 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 discharged for being absent without leave (AWOL). He understands the reason for his discharge; however he requests that his characterization of service be reconsidered and upgraded. . 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 October 1967. b. He accepted nonjudicial punishment on/for: * 14 November 1967, for AWOL from 11 November 1967 to 12 November 1967 * 5 December 1967, for AWOL from 3 December 1967 to 3 December 1967 * 18 December 1967, failure to be at his appointed place of duty c. On 21 February 1968, the applicant was convicted by a special court-martial for two specifications of AWOL from 19 December 1967 to 30 December 1967 and 3 January 1968 to 26 January 1968. The court sentenced him to confinement at hard labor for 6 months and forfeiture of $63 per month for 6 months. The sentence was approved on 28 February 1968. d. He accepted nonjudicial punishment on 20 May 1968 for AWOL on 20 May 1968. e. On 4 June 1969, the applicant's immediate commander recommended the applicant be discharged from the Army 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). His request for discharge states: * on 20 February 1969, the applicant appeared in circuit court and was charged with illegal possession of a stolen motor vehicle * the applicant requested placement under a trainee act * on 14 March 1969, the court granted his request and placed him on a trainee status and on probation for a period of 2 years * Dthe offense of wrongful appropriate of property of any motor vehicle is punishable by confinement at hard labor for 2 years, a dishonorable discharge, and forfeiture of all pay and allowances f. On 26 June 1969, having the opportunity to consult with counsel, the applicant waived consideration of his case by a board of officers and a personal appearance before a board of officers, elected not to submit statements in his own behalf, and waived representation by counsel. He understood that as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many 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 did not intend to appeal his conviction for illegal possession of a stolen motor vehicle. g. Consistent with the chain of command recommendation, on 7 July 1969, the separation authority approved his request for discharge under the provisions of paragraph 9-13 of AR 635-200 directed his service be characterized under other than honorable conditions and reduced to the lowest grade.. h. On 17 July 1969, the applicant was discharged from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-206, Chapter 3, with an under other than honorable conditions characterization of service. He completed 8 months of active service with 411 days of lost time. 4. By regulation, 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 one year. 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 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 short term of honorable service completed prior to multiple AWOL offenses, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a(1) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 1-13b states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. 3. Army Regulation 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). Paragraph 33 of the regulation provided that 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 n 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. 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) AR20170012000 3 1