ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20180010089 APPLICANT REQUESTS: reconsideration of his request to have his under other than honorable conditions discharge upgraded to honorable or general. 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) * DD Form 214 (Report of Separation from Active Duty), effective date 19 May 1976 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC-2883563 on 8 September 1983. 2. The applicant states he needs help. He gets $1,100 a month to live on. His justification for his request is that his record of absence without leave (AWOL) indicates only minor or isolated offenses. Also, he made E-5 and E-6 in Vietnam in 1967 and 1968. 3. A review of the applicant’s service record shows: a. On 8 January 1963, he enlisted in the Regular Army (RA). On 8 January 1965, he was discharged from active duty for immediate reenlistment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects that the completed 2 years and 1 day of active service. On 9 January 1965, he immediately reenlisted in the RA. b. His DA Form 20 (Enlisted Qualification Record) shows he served in Germany from 19 June 1963 to 9 March 1966 and 14 June 1968 to 19 October 1968. He also served in Vietnam from 20 April 1967 to 19 April 1968. c. On 10 May 1966, he accepted nonjudicial punishment for two specifications of failing to obey a regulation. His punishment included reduction to specialist four/E-4, forfeiture of $108 pay for two months, both suspended for 90 days. d. On 1 October 1966, he was convicted by special court-martial for three specifications of AWOL from 8-9 June 1966, 3-21 July 1966, and 22 July to 15 August 1966. The court sentenced him to reduction corporal/E-4 and forfeiture of $148 pay for one month. On 10 October 1966, the sentence was approved and ordered executed. e. DA Form 20 shows he was dropped from rolls on 19 March 1969. The next recorded event occurred on 2 April 1974 when he was apprehended by civil authorities. f. On 18 December 1974, the commander notified him of his intent to initiate separation under the provisions of AR 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), due to conviction by civil authorities on the charge of 1st degree murder. DA Form 2800 (CID Report of Investigation) shows the applicant pled guilty to 1st degree murder and was sentenced to life imprisonment, with mercy. The commander advised him that this action has been suspended to give him the opportunity to give him the opportunity to exercise the following: * request appointment of a military lawyer to represent him and in his absence present his case before a board of officers * request to be represented by civilian council at his own expense * submit a statement in his behalf * Waive the aforementioned rights in writing by declining to respond within 30 days * failure to return the waivers within the required time period will result in his case being reviewed by a board of officers * if recommended for discharge, he would be issued the type discharge ac deemed appropriate g. On 28 December 1974, the applicant responded and indicated he did not wish representation by counsel, did not wish to submit a statement in his own behalf, and did not intend to appeal his civil conviction. He elected to have his case considered by a board of officers. He acknowledged that he understood as a result of the issuance of a discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and state laws and that he might expect to encounter substantial prejudice in civilian life. h. On 28 February 1975, the commander again notified him of his intent to initiate separation under the provisions of AR 635-206 due to conviction by civil authorities on the charge of 1st degree murder. The commander further recommended an undesirable discharge. He further advised him that this action has been suspended to give him the opportunity to give him the opportunity to exercise the following: * request appointment of a military lawyer to represent him and in his absence present his case before a board of officers * request to be represented by civilian council at his own expense * submit a statement in his behalf * Waive the aforementioned rights in writing by declining to respond within 30 days * failure to return the waivers within the required time period will result in his case being reviewed by a board of officers * if recommended for discharge, he would be issued the type discharge ac deemed appropriate i. On 5 March 1975, the applicant responded and elected representation by counsel. He further indicated he did not wish to submit a statement in his own behalf, and did not intend to appeal his civil conviction. He elected to have his case considered by a board of officers. He acknowledged that he understood as a result of the issuance of a discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and state laws and that he might expect to encounter substantial prejudice in civilian life. j. On 10 June 1975, the applicant’s defense counsel wrote to him and advised him of the board of officers’ procedures, types of discharge, his right to submit a statement, and other rights. k. On 13 November 1975, the commander requested the authority to convene a board of officers based upon the proposed separation for the civil conviction. On 6 April 1976, the applicant was notified that his counsel would represent him before the board of officers. l. The board of officers’ findings and recommendations are not available for review with this case. m. On 28 April 1976, the separation authority made reference to the board of officers’ proceedings pertaining to the applicant and approved the discharge action. He ordered the applicant receive an Undesirable Discharge Certificate. The applicant would be discharged under the provisions of AR 635-206, by reason of conviction by a civil court, reduced to the lowest enlisted grade, and furnished with an Undesirable Discharge Certificate. n. On 19 May 1976, the applicant was discharged from active duty under the provisions of AR 635-206, section VI (Conviction by Civil Court), and issued an other than honorable conditions discharge. His DD Form 214 reflects that the completed 5 years, 10 months, and 10 days of active service with 731 days of lost time on 8 June 1966, 3-20 July 1966, 22 July 1966-14 August 1966, 15 August 1966-1 October 1966, and 18 February 1969-8 January 1971. It also shows that he was awarded or was authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal with 60 Device * Combat Infantryman Badge * Bronze Star Medal * Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) * oversea service bars (2) o. On 8 September 1983, the ABCMR determined there was insufficient evidence to indicate probable material error or injustice. His application was denied. p. On 27 September 1989, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 4. By regulation, an individual will be considered for discharge when it is determined that he has been initially convicted by civil authorities of an offense 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 one year. An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the pattern of misconduct including multiple lengthy AWOL offenses and a lack of mitigating reasons for the AWOL presented by the applicant, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), section VI (Conviction by Civil Court), in effect at the time states an individual will be considered for discharge when it is determined that he has been initially convicted by civil authorities of an offense 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 one 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20180010089 7 1