ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  .

	BOARD DATE:  21 June 2019

	DOCKET NUMBER:  AR20170013122


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)

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 believes he is a much better person today than when he was younger.

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

	a.  He enlisted in the Regular Army on 9 August 1966.

	b.  On 26 October 1968, he accepted nonjudicial punishment, Article 15, for wrongful possession of 0.4 grams, more or less, of marijuana.  He was reduced to the grade of E1, forfeiture of $58 per month for one month and restriction for 60 days.

	c.  On 24 June 1969, the Department of Justice, Federal Bureau of Investigation, charged him with attempted burglary and burglary of a coin operating machine in Tulsa, Oklahoma (OK).  Also, he was charged with the possession of a sawed off 12-gauge shotgun in Barstow, California.

	d.  On 21 September 1970, The State of Oklahoma convicted him of breaking and entering.  He was sentenced to one year in the Tulsa county jail.

	e.  Special court-martial charges were preferred on 14 April 1971.  The order number, 640, indicates he was charged with one specification of being absent without leave from 24 March 1969 to 20 August 1969.  The court sentenced him to confinement at hard labor for 75 days and forfeiture of $70 pay per month for 3 months.

	f.  On 3 June 1981, the applicant was discharged from the Army under the provisions of Section VI, Convictions by Civil Court, Army Regulation 635-206 (Personnel Separations – Discharge), with an Undesirable Discharge Certificate.  His DD Form 214 shows he completed 2 years, 7 months and 5 days of active service and 774 days of lost time.  Also, his DD Form 214 shows he was awarded or authorized the:

* Vietnam Service Medal
* Republic of Vietnam Campaign Medal w/device (1960)
* National Defense Service Medal

4.  By regulation (AR 635-206), an individual will be considered for discharge when he has been initially convicted by civil authorities.  Normally, an individual will be furnished an undesirable discharge certificate except that an honorable or general certificate may be furnished if the individual being discharged has been awarded a personal decoration.

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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states that 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 that 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.

3.  Army Regulation (AR) 635-206 (Personnel Separations – Discharge), Section VI. Misconduct, establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of civil court conviction.  Normally, an individual will be furnished an undesirable discharge certificate except that an honorable or general certificate may be furnished if the individual being discharged has been awarded a personal decoration.

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)	 AR20170013122


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