ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20180002818 APPLICANT REQUESTS: * an upgrade of his Under Other Than Honorable Conditions discharge * correction of his rank and pay grade at the time of discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Continuation statement from DD Form 149 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) * DD Form 214 (Certificate of Release or Discharge From Active Duty) 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 contends that being discharged under the present statue is an utter injustice due to the fact that his only infraction while on active duty involved leaving his wall locker unattended. This Board will admit that following a civilian conviction with incarceration by civilian authorities, he could not satisfy and complete his obligation owed to the government and the American people. It would be in the interest of justice for the Board to consider, upgrade, and correct the total disregard of his service rendered while on active duty. Notwithstanding, an upgrade will allow him to stand and salute the American flag with dignity. 3. The applicant provides * DA Form 2627, which shows he accepted non-judicial punishment on 22 February 1980 * DD Form 214, which shows he was received an under other than honorable conditions discharge on 14 June 1982 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 29 November 1977. b. Bell County TX court documents shows he was convicted by civil court and sentenced to a term of no less than 5 years and not more than 25 years for burglary of a habitation on 26 February 1980. c. On 1 March 1982, the applicant was notified of recommended separation under provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct) based on his civil conviction of burglary of a habitation. The applicant had not been returned to military control. d. On 2 March 1982, the applicant was advised by counsel of the contemplated action of separation UP AR 635-200 for conviction by civil court. He understood: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * as the result of issuance of a discharge certificate under conditions other than honorable, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * requested consideration of his case by a board of officers and representation by council * statements in his own behalf were submitted * he filed an appeal of his conviction and sentence * he acknowledged he would be ineligible to apply for enlistment in the US Army for a period of two years after discharge e. On 24 March 1982, his chain of command concurred with the recommendation, and on 2 April 1982, board member were appointed for the administrative separation board. f. On 20 April 1982, the applicant was notified of the administrative elimination board. There were no witnesses scheduled to testify against him. The board would examine and consider the following evidence: * Record of judgement, dated 5 May 1980 * Record of sentence, dated 27 May 1980 * Article 15, dated 22 February 1980 g. On 27 April 1982, an administrative separation convened. The applicant did not appear but was represented by council. In the board proceedings concerning the applicant, the board carefully considered the evidence before it and found that they are going to discharge the applicant with an under other than honorable conditions discharge UP of chapter 14, AR 635-200. h. On 5 May 1982, the separation authority approved the recommendation to discharge the applicant with an under other than honorable condition discharge UP of AR 635-200 chapter 14. i. Orders 121-149, dated 17 June 1982, reduced the applicant from private/E-3 to private/E-1 effective 5 May 1982 UP of AR 600-200 (Personnel – General Enlisted Personnel Management System) paragraph 8-11 (Approved for discharge from service under other than honorable conditions). j. On 14 June 1982, the applicant was discharged accordingly. His DD 214 shows he was discharged under the provisions of chapter 14 of AR 635-200, in the rank/grade of private/E-1 due to misconduct-conviction by civil court, with an under other than honorable conditions character of service. It also shows he completed 2 years, 2 months, and 28 days of active service with lost time from 26 February 1980 to 14 June 1982. He was awarded the Army Service Ribbon. k. On 29 November 1982, a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge From Active Duty) corrected the applicant’s name. 5. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 6. By regulation, when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. 7. 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 seriousness and criminal nature of the misconduct which led to the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. Additionally, based upon the characterization of service received (UOTH), per regulatory guidance, the applicant was automatically reduced to Private/E1 and that is what is depicted on his DD Form 214. Therefore, the Board found no error or injustice which would warrant making a change to his rank and pay grade. 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) 600-200 prescribes policies and procedures for promotion and reductions in grade. Paragraph 8-11 (Approved for discharge from service under other than honorable conditions) states when the general court-martial authority determines that a Soldier is to be discharged from the service under other than honorable conditions, he will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having general court-martial jurisdiction will, when directing a discharge under other than honorable conditions, or when directed by higher authority, direct the Soldier to be reduced to private, E-1. If discharge is approved under other than honorable conditions, but is suspended (paragraph 1-27, AR 635-200), the Soldier will not be reduced under this paragraph. 3. AR 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets forth the basic authority for 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 unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002818 4 1