ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20170017304 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Attorney 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 stated that if record show dishonorable discharge, it is in error and should be corrected to honorable or general discharge. Prior to his separation from the Army in the early-to-mid 1970’s, he was promised by his commanding officers the misdemeanor theft conviction would not result in a dishonorable discharge or undesirable. He never suffered anything more serious than misdemeanor conviction. He wants his record of service in the military to be consistent with his personal history. 3. A letter from his attorney, dated 17 October 2016, that stated the applicant is seeking assistance in reviewing the nature and circumstances of his discharge from the military in the early-mid 1970's. According to the applicant, he was informed by his commanding officers that if the burglary accusation he faced at that time in the State of California was ultimately resolved without a felony conviction, then a dishonorable discharge from the Army would not be imposed. The applicant was convicted of a misdemeanor pursuant to California Law. He no longer possesses any documents concerning his military service or the disciplinary proceedings he faced. They are seeking help in reviewing this matter for the purpose of correcting any errors, if there were any made in connection with his separation from the military. 4. A review of his service record show the following: a. The applicant enlisted in the Regular Army on 10 May 1973. b. His DA Form 2-1 ( Personnel Qualification Record) shows in item 27 (remarks) that the applicant was arrested on 22 February 1974 by civil authorities in Martinez, CA, while on authorized pass. He was charged with burglary and sentenced to 45 days in jail. He returned to duty on 26 August 1974. He was required to appear in court on 28 February 1974, 28 June 19874 and 15 July 1974. c. He accepted nonjudicial punishment: * 18 June 1974, failed to go at the prescribed, appointed place of duty * 27 August 74, absent without leave (AWOL) from 20 to 23 August 1974 and 26 August 1974, failed to go at the time prescribed, appointed place of duty, his punishment included in part reduction to E-1 * 10 September 1974, failed to go at the time prescribed, appointed place of duty d. On 11 September 1974, the applicant’s immediate commander notified him of his intent to eliminate him from the service 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), paragraph 33a for conviction by civil court. e. On 11 September 1974, he acknowledged receipt of the notification of separation document. He was advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for civilian conviction under the provision of AR 635- 206 and its effects of the right available to him, and the effect of any action taken by him in waiving his rights. He acknowledge: * he waived consideration of his case by a board of officer * he waived his right for personal appearance before a board of officer * he waived representation by counsel or representation by counsel civilian counsel at his own expense * he acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * he acknowledged that he would be ineligible for any or all Veteran benefits as a result of the issuance of an other than honorable discharge f. On 26 September 1974, he submitted a statement on his own behalf which stated in summary, since his enlistment he has not had any trouble in the Army. In June, he received an article 15 for being about a minute late to formation along with about 15 other enlisted members. In the last week of August and the first part of September he received three article 15’s, one for AWOL after being released from civilian confinement, mainly because of situation at home. His fatigue were in the cleaners, he done some work at home to make money to get them out and to get back. The last two article 15’s were from coming to work late, he still had not become accustomed to the Army work hours, jail hours were entirely different. Things had been going well, he was trying to better his discharge, and he needed a new start. He could not live up to the Army expectations any longer. g. On 18 September 1974, he underwent a mental evaluation the examiner stated that he had the mental capacity to understand, participate in board proceedings and was qualified for separation. h. On 26 September 1974, his immediate commander initiated a separation from service under the provisions of AR 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without leave or Desertion) for conviction by civil court, twice for burglary, in addition to several incidents of misconduct. The immediate commander stated the applicant had been convicted twice of burglary, in addition to several incidents of misconduct in the unit. It was the judgement of this command that further retention of this individual would only increase the probability of a similar occurrence within the confines of the service. i. Consistent with the immediate and intermediate commanders’ recommendations, the separation authority approved the applicants discharge under the provisions of AR 635-206 for civil conviction. The applicant would be reduced to the grade of E-1 and issued an Undesirable Discharge Certificate, Separation Program Number JKB. j. On 25 October 1974, he was discharged from active duty under the provisions of AR 635-206, with an under other than honorable condition characterization of service discharge. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 4 months, and 8 days of active service with 58 days lost time from 16 July 1964 to 22 August 1974. It also shows he was awarded or authorized: Marksman Marksmanship Qualification Badge Rifle. k. On 25 July 1983, the Army Discharge Review Board (ADRB), provided a letter to the applicant in response to his request for correction of his military record. The ADRB confirmed his request his application for discharge review be withdrawn from further consideration by the Board. 5. 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 1 year. An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate. 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 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 relatively short term of honorable service completed prior to a pattern of misconduct, which include some of a criminal nature, the Board concluded that the characterization of service received at the time of separation 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. Army Regulation 635-200 (Active Duty Enlisted Administrative 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 (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) AR20170017304 2 1