ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 July 2019

	DOCKET NUMBER:  AR20180006938


APPLICANT REQUESTS:  an upgrade of her 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, in effect, she has been a model citizen, having earned a Master’s degree in education and has been a public school teacher for 27 years.  She regrets the errors of her actions when she was 18.  She joined the Army to escape her abusive father.  She did not know how to respond to the military system of operation.  Now that she is older, she regrets not seeking help.

3.  A review of the applicant's service record shows:
   
   a. She enlisted in the Regular Army on 28 February 1966.
   
   b. She accepted nonjudicial punishment (NJP) on 10 October 1966 for being absent without leave (AWOL) from 23 September 1966 until 5 October 1966.

   c. Dade County Criminal Court of Record, dated 15 September 1967, shows the applicant was charged with breaking and entering a dwelling, assault with intent to commit murder in the first degree with a firearm on 22 April 1967.  She was found guilty of breaking and entering and aggravated assault.  She was sentenced to 18 months at the state penitentiary, less 55 days/time served 15 June 1967 (sic).  


   d. It is unclear the exact date the applicant's immediate commander notified her of the initiation of separation action under the provisions of Army Regulation (AR) 635-206 (Personnel Separations), paragraph 33a, for convictions by civil court.  
   
   e. On 7 October 1967, the applicant acknowledged receipt of notification of the initiation of separation action and was afforded the opportunity to consult with appointed counsel, or military counsel of her own choice, or civilian counsel at this own expense.  She declined the opportunity to consult with counsel and acknowledged she:
   
* understood she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions 
* understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her
   
   f.  On 23 October 1967, the separation authority approved the applicant's discharge under the provisions of AR 635-206, Section VI, paragraph 33a, for convictions by civil court, with her service characterized as undesirable.  
   
     g.  Her DD Form 214 shows she was discharged under the provisions of AR 635-206, and was issued Separation Program Number (SPN) 284.  Her service was characterized as under other than honorable conditions and she was issued an Undesirable Discharge Certificate.  She completed 7 months and 2 days of net service with 392 days of lost time.  

4.  There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations.

5.  Army Regulation 635-206 provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.

6.  The Board should consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  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.  She did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the serious and criminal nature of the offenses which resulted in the applicant’s separation, as well as the failure to accept responsibility and show remorse for the events leading to her separation, 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 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).  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 which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department

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 on the basis of 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. 

ABCMR Record of Proceedings (cont)	 AR20180006938


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