ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20170018306 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) * Self-Authored statement 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 would like for his undesirable discharged to be upgraded to honorable conditions. He provides a detailed self-authored statement which is attached, describing the incident and his military and personal experiences. He contends that his undesirable discharge was issued simply because he did not want to stay in the Army at the time, being so young and wild and so independent. It would serve no constructive purpose to keep his discharge as undesirable 3. A review of the applicant’s service record shows: a. He enlisted into the Army on 5 January 1967. b. On 28 March 1967, the prosecuting attorney from the Circuit Court sent a letter to the applicant’s commander with notification of charges brought against applicant for breaking and entering. c. On 19 April 1967, the applicant plead guilty to breaking and entering and the circuit court initiated an order of probation sentencing the applicant to 3 years’ probation and 90 days confinement in jail with a credit to be given for time served. a. d. On 17 May 1967, the applicant was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 20 January 1967 to 22 April 1967 and 24 April 1967 to 27 April 1967. On 24 May 1967, the sentence was approved for him to be confined to hard labor and forfeiture of pay for 6 months. e. On 7 June 1967, the applicant’s immediate commander initiated action to separate him from the Army under the provisions of paragraph 33, section VI of Army Regulation (AR) 635-206 (Discharge Misconduct, Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion). The commander listed the applicant’s AWOL time, arrest by civil authorities, conduct and efficiency as unsatisfactory, special court martial conviction and confinement. He recommended an Undesirable Discharge Certificate. f. On 5 June 1967, he was given the opportunity to consult with appointed counsel but waived that right and acknowledged the following: * he understood that if an Undesirable Discharge was issued that such discharge will be under conditions other than honorable * he acknowledged that as a result of such a discharge he may be deprived of many or all rights as a veteran both under Federal and State laws * he elected not to submit a statement on his behalf g. On 15 July 1967, consistent with the chain of command’s recommendations, the separation authority approved the discharge action under the provisions of AR 635-206, noted his waiver of his rights to appear before a board of officers, and issued an Undesirable Discharge Certificate. h. He was discharged on 20 July 1967. 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 by reason of willful misconduct. His characterization of service was under conditions other than honorable. He completed 2 months and 12 days active service and he had 124 days of lost time. 4. By regulation, individuals who, during their term of active military service, have been convicted by a civil court may be discharged. An Undesirable Discharge Certificate was appropriate in such cases. 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. 1. 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 relief was not warranted. Based upon the short term of service and the seriousness of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/10/2019 X CHAIRPERSON Signed by: 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, and Absence without Leave or Desertion), in effect at the time, provided for a separation of enlisted Soldiers who had been convicted by Civil Court. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. 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. c. The discharge of individuals who, during their term of active military service, have been initially convicted by a civil court, or adjudged youthful offenders, by domestic courts of the United States and its territorial possessions, or by a foreign tribunal, may be ordered in accordance with this section by discharge authorities designated in AR 635-206. · 3. 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 or 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, 1. 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.