ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  4 June 2019

	DOCKET NUMBER:  AR20180002548


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)

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 was misled by his lieutenant to except the undesirable discharge and would like to be reconsidered for an honorable discharge.

3.  A review of the applicant’s service record shows:

a.  He enlisted in the Army on 10 March 1971.

b.  He accepted nonjudicial punishment on/ for:

* 28 May 1971 to 8 September 1971, for being absent without leave (AWOL)
* 4 January 1972 to 14 December 1972, for being AWOL
* 15 December 1972 to 25 February 1973 for being (AWOL)
* Tried at the District Court of Western Norfolk charge with unauthorized use of a motor vehicle and was sentenced to 6 months

c.  On 16 February 1973, the applicant’s immediate commander notified the
applicant of his intent to initiate action to eliminate him from the Army under the provisions of Army Regulation (AR) 635-206 (Personnel Separations-Discharge Misconduct) by reason of Conviction by Civil Court.  He advised the applicant of his rights.

d.  On 22 February 1973, the applicant acknowledged he had been notified of the
pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for conviction by civil court.  He waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  He acknowledge that:

* he understood he could expect to encounter substantial prejudice in civilian life if a discharge under conditions other than honorable was issued to him
* he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he many encounter substantial prejudice in civilian life

e.  On 27 February 1973, the applicant’s immediate commander initiated action to
separate him from the Army under the provisions of paragraph 17 of AR 635-206.  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.  He was discharged on 19 March 1973.  His DD form 214 shows he was
discharged under the provisions of AR 635-206 by reason of conviction by civil court.  His characterization of service was under conditions other than honorable.  He completed 6 months and 7 days active service and he had 548 days of lost time.

4.  By regulation, discharge of individuals who, during their term of active military service, have been initially convicted by a civil court may be discharged.

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.


BOARD DISCUSSION:

After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the short term of service completed prior to a lengthy pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events which led to his discharge, 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, 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 635-200.

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, 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)	 AR20180002548


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