ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20170015675 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 (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 as a young man with little parental guidance and inadequate education, he made inappropriate decisions which caused his removal from the armed forces. For the remainder of his working career, he strived for excellence being a giver and not a taker. He is a true American and made changes in his life that would make his country proud. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 11 April 1961. b. On 6 February 1963, the applicant was convicted in civil court of operating a motor vehicle without the owner’s consent. He was sentenced to 90 days in confinement and a fine of $500. c. On 18 March 1963, the applicant’s commander initiated action to separate the applicant under the provisions of paragraph 20a, Army Regulation (AR) 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, Absence Without Leave, Desertion) for operating a vehicle without the owner’s consent, larceny of a motor vehicle, and interstate transportation of a stolen motor vehicle. d. Consistent with the chain of command recommendations, on 30 March 1963, the separation approval authority approved the applicant’s discharge under the provisions of paragraph 20a, AR 635-206. He would be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate. e. He was discharged from active duty on 1 May 1963 with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 1 year, 9 months, and 22 days of active service with 89 days lost. 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and after careful consideration, the ADRB denied his request on 26 October 1981. 5. By regulation, an individual will be considered for discharge by reason of misconduct when convicted by civil court 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. 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 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. 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, Desertion), in effect at the time, set forth the authority to separate enlisted personnel for civil convictions. It states an individual will be considered for discharge by reason of misconduct when convicted by civil court 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. 3. AR 635-200 (Active Duty Enlisted Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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) states 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 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. ABCMR Record of Proceedings (cont) AR20170015675 3 1