ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 August 2019

	DOCKET NUMBER:  AR20180008878


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to honorable.

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)
* DD Form 149 (Application for Correction of Military Record)
* National Personnel Records Center (NPRC) Letter with Separation Documents
* Special Orders Number 37 dated 15 February 1976 – Discharge
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 the DD Form 214 mailed to him reads, “Honorable.”  He is in need of medical assistance and is unable to receive it with an under other than honorable conditions discharge.  He has proudly served the country and would like the discharge changed to honorable.  He is trying to obtain medical benefits and his medication is expensive.

3.  The applicant provides:

	a.  The letter he received from NPRC, dated 11 August 2015, which stated separation documents were enclosed.

	b.  Special Orders Number 37, dated 15 February 1967, which noted he was discharged with an effective date of 15 February 1967.

	c.  DD Form 214 with an effective date of 8 August 1965 which indicated he was discharged for immediate reenlistment with an honorable characterization of service.

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

a. He enlisted in the Regular Army on 2 June 1964.

b.  He served in Germany from 24 October 1964 to 9 June 1966.

   c.  He was convicted by a special court-martial on 30 November 1966 for one specification of being absent without leave from 15 August 1966 to 19 August 1966.  His sentence included confinement for two months.

   d.  On 5 December 1966, he was sentenced by the United States District Court, Eastern District of Texas, for transporting a stolen vehicle.  His punishment included a sentence of two years, suspended for three years with active probation to being upon his release from the Army.
   
   e.  On 9 January 1967, the applicant submitted a statement which indicated he did not intend to appeal his civil conviction on 5 December 1966.
   
   f.  On 9 January 1967, after consulting with legal counsel, he acknowledged: 

* his case could be considered by a board of officers, and he waived such right
* he could submit statements on his behalf and elected not to submit statements
* he could be represented by appointed counsel, and he waived such right
* he may be ineligible for many or all benefits as a Veteran under both Federal and State laws
* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him

   g.  On 10 January 1967, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Section VI, paragraph 33(a), Army Regulation (AR) 635-206 (Discharge: Personnel Separations) for conviction by a civil court.  The specific reasons for his proposed recommendation are based upon his civil conviction.  The notification was given in person.

   h.  On 10 January 1967, the immediate commander initiated separation action against the applicant for civil conviction.  

	i.  On 6 February 1967, the separation authority approved the discharge recommendation for immediate separation under the provisions of Section VI, AR 635-206, for civil conviction.  He would be issued an Undesirable Discharge Certificate.
   j.  On 16 February 1967, he was discharged from active duty with an under other than honorable conditions characterization of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 13 days active service with 1 year, 2 months, and 7 days of prior active serve.  It also shows he was not awarded or authorized any badges or decorations; however, his reenlistment DD Form 214, with an effective date of 8 August 1965, shows he was awarded or authorized:
   
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Marksman Marksmanship Qualification Badge with Machine Gun (M-60)

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

6.  By regulation, an individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him 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 individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate.

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, 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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the seriousness of the offense resulting in a civil conviction, as well as the failure to demonstrate an acceptance of responsibility for the misconduct and show remorse for the events leading to his 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 (AR) 635-206 (Discharge - Personnel Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  An individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him 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 individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate.

3.  	Army Regulation 635-200 (Personnel Separations Enlisted Personnel), currently in effect, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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 (General Discharge) states 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.

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)	 AR20180008878


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