ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20170018766 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with personal statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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, in effect, he was a 17 year old kid who was immature; he got involved with alcohol when he tried to fit in. During his first break during basic training, he got in trouble for missing fire watch because he was drunk. Now, he has not touched a drop of alcohol in 40 years. 3. The applicant enlisted in the Regular Army on 28 June 1968. 4. The applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 22 July 1968, for failing to report to his appointed place of duty on or about 20 July 1968 * on 9 September 1968, for absenting himself from his unit from on or about 8 August 1968 through on or about 6 September 1968 5. The applicant’s service records contain a DA Form 188 (Extract Copy of Morning Report), dated 16 October 1968, which shows he was reported as absent without leave (AWOL) on 15 October 1968, while pending court-martial charges. The nature of those court-martial charges is unknown. 6. The applicant’s record also contains a memorandum to the applicant’s commander, which shows the applicant was arrested on 7 November 1968 for committing burglary, larceny, receiving stolen goods, and conspiracy while in Pennsylvania on 6 November 1968. The memorandum further shows: * the applicant appeared before the Justice of the Peace on 7 November 1968 and was ordered held without bail, pending further court actions * on 8 November 1968, it was requested he be returned to military control * on 6 December 1968, he received a suspended sentence and on 10 December 1968, his sentence was changed to four years of probation and he was ordered released to military control * on 13 December 1968, he was returned to military control and transferred to Fort Meade, MD 7. Summary Court-Martial Order Number 1205, dated 31 December 1968, shows the applicant was convicted of absenting himself from his unit from on or about 18 September 1968 through on or about 14 October 1968, and from on or about 15 October 1968 through on or about 15 December 1968. His sentence included his confinement at hard labor for 30 days. The sentence was adjudged, approved and ordered to be executed and the applicant was ordered to be confined in the Post Stockade, Fort Meade, MD. 8. The applicant’s service record contain the following: a. A DA Form 19-32 (Military Police Report), showing the applicant was again listed as AWOL on 3 March 1969 and dropped from the rolls on 1 April 1969. He was apprehended by civilian authorities on 5 July 1969. b. A Federal Bureau of Investigation report, showing a record of his civil offenses. c. An Enlisted Personnel Confined by Civil Authorities form, showing the applicant was arrested for burglary, larceny again on 17 February 1970. 9. The applicant's previously suspended sentence was vacated on 22 May 1970, and he was sentenced to serve 1 to 2 years in the State Penitentiary for the Commonwealth of Pennsylvania. 10. The applicant's immediate commander notified the applicant on 11 December 1970 of his intent to initiate separation actions under the provisions Army Regulation 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), based on his conviction by a civil court for burglary. 11. The applicant acknowledged receipt of the commander’s proposed separation action on 1 September 1971 and made the following statements and rights elections: * he requested representation by counsel * he wish to make a statement on his own behalf * he noted he wished to appeal his civil conviction and it was pending at that time 12. He submitted a second statement with his election of rights on 8 January 1972 after his appeal was denied. In his statement, he requested the following: * he requested representation by counsel * he did not wish to make a statement on his own behalf * he did not wished to appeal his civil conviction * he requested consideration of his case by a board of officers 13. The applicant's immediate commander notified him on 27 July 1972 that separation actions under the provisions Army Regulation 635-206 were suspended to allow him the opportunity for his case to be heard by a Board of Officers. 14. The Commander of Fort Meade, MD requested a Board of Officers on 5 September 1972, to review the applicant’s case based upon his civil conviction for the charges of burglary, larceny, and receiving stolen goods. He entered a plea of guilty to the above charges and was sentenced to be imprisoned and confined in the Bucks County Prison, Doylestown, Pa. for a period of 1 to 2 years. The convening authority noted that the charges were the equivalent to Articles 129, 121, and 134 of the UCMJ, punishable by Dishonorable Discharge, forfeiture of all pay and allowances, and confinement at hard labor not to exceed three years. 15. The applicant was appointed counsel on 8 September 1972 and notified of the board date on 17 September 1972. 16. After careful consideration of the applicant’s case on 18 October 1972, the board recommended his discharge for misconduct (conviction by civil court), repeated periods of AWOL service, and a displayed unwillingness to conform to military standards and regulations. 17. The separation authority approved the recommended discharge on 9 November 1972 and directed the issuance of an Undesirable Discharge Certificate. 18. The applicant was discharged on 9 November 1972. The DD Form 214 he was issued shows his service was characterized as UOTHC. 19. The Board should consider the applicant's statement 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 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), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. 3. Army Regulation 635-206, 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 that was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year; or b. When initially convicted by civil authorities of an offense that involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20170018766 4 1