ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20180001531 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions discharge to (general) under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States) * Washington State Police (WSP) watch printout, dated 18 July 2017 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 there were many turns that he made in the military but the big turn downward when he was shot in the leg. This was reported as a shooting at a friend’s house although that was to protect the Soldier that was with him at the time. It actually happened in the barracks and was an intentional shooting that angered him. He should have reported it differently although the other Soldier was a friend, so he did not want to get him in trouble. It was that betrayal by that friend that shook his moral tree and turned him professionally. The charges that got him kicked out was for stealing gas from a truck one night when the person that shot him ran out of gas in his car and they went to a farm and he took some gas. When the sheriff came, the supposed friend told the sheriff the applicant was with him and the applicant got busted as well. The applicant’s issues stemmed from one person and the decisions he made with him. He has not been in trouble with the law since and has changed his direction in life but this discharge is the last dark cloud he would like to clear. He asks the Board to see the WSP report to verify that he has not been in trouble and grant his request. 3. The applicant provides a printout from WSP watch that shows pursuant to the purpose of inquiry, no web search found in Washington State on this individual. 1. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 26 June 1973. b. He accepted non-judicial punishment under Article 15 on/for: * 28 December 1973, absent without leave (AWOL) from 26 December 1973 until 27 December 1973, he was reduced to private/E-1 * 27 January 1975, AWOL from 21 January 1975 until 21 January 1975 * 11 March 1975, AWOL from 13 February 1975 until 25 February 1975 and 4 March 1975 until 10 March 1975, he was reduced to private first class/E-3 c. On 15 May 1975, he was arraigned by the State of Kansas on the charges of Burglary and Felony Theft. The sentence was suspended and record is void of further sentencing. d. On 16 June 1975, the applicant received a letter from his command notifying him of proposed separation under the provisions (UP) of Army Regulation (AR) 635-206 (Personnel Separations – Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)). e. On 7 July 1975, his immediate commander recommended he be discharged UP of AR 635-206 because of civil conviction. Recommended he received an Undesirable Discharge Certificate. f. On 22 July 1975, the applicant was advised by legal counsel of the basis of the contemplated separation action. He acknowledged: * Waived consideration of his case by a board of officers * Waived personal appearance before a board of officers * Statements on his own behalf were not submitted * Waived representation by military counsel * Understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * He may be ineligible for many or all benefits as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life * Understood that he may, up until the date the separation authority orders, directs, or approves his separation, withdraw this waiver and request that an administrative separation board hear his case * He did not intend to appeal his conviction for burglary and felony theft * g. On 4 August 1975 consistent with the chain of command's recommendation, the separation authority approved the recommendation for discharge UP of Section VI (Conviction by Civil Court), paragraph 37 (Authority for discharge or retention), AR 635-206. He directed an Undesirable Discharge Certificate. h. On 18 August 1975, he was discharged with an under other than honorable conditions character of service in the rank of private/E-1. He completed 1 year, 9 months, and 22 days of active service. He was awarded the National Defense Service Medal. He had a total of 121 days of lost time. 5. On 11 July 1983, he was notified of the Army Discharge Review Board’s decision to deny his request for change in the character and/or reason of discharge. 6. On 22 January 1992, the applicant was notified that after thoroughly examining and considering the application and available records, the ABCMR has denied his application. The Record of Proceedings for his previous petition to the ABCMR is not available for review. 7. By regulation, AR 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct, civil conviction. Section VI of the regulation provided, in pertinent part, for the separation of personnel who are initially convicted by civil authorities, or who have had action taken against them 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 undesirable discharge was normally considered appropriate. 8. 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, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, his arrest by civil authorities, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, including the relatively short term of service completed prior to a pattern of misconduct, which included some misconduct involving criminal offenses, the Board concluded that the characterization of service received at the time of discharge was not in error or unjust. 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. 6/24/2019 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) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a(1) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member. b. Paragraph 1-13a(2) states An honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial. When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member. c. Paragraph 1-13b states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of a. unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. 3. AR 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct, civil conviction. Section VI of the regulation provided, in pertinent part, for the separation of personnel who are initially convicted by civil authorities, or who have had action taken against them 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 undesirable discharge was normally considered appropriate. 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.