ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20190000189 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with undated, self-authored statement * DD Form 214 (Report of Separation from Active Duty), for the period ending 1 June 1977 * State of Louisiana Name Change Affidavit, dated 24 May 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 his military performance was, admittedly, subpar and he is hoping the Board will see fit to grant his request on the grounds that he has succeeded in rehabilitating himself into a working civilian. It took some growing up to accept responsibility for his actions; however, he can now look back and see his immature ways. For the last 40 years, he has not been incarcerated and has continued to upgrade his education through several trade schools. When he was released from incarceration, he did not go straight home and created problems for the family. As a matter of fact, it is partly because of him that his family became a military family. Of his mother’s 13 children, all are affiliated with the military in one way or another. He volunteered to join and fight in the Vietnam War for three years, and out of that three years, two and a third were without incident. He was willing and is still willing to serve this country with honor and pride. He is truly sorry for any shame he put on the military and his fellow neighbors. 3. The applicant enlisted in the Regular Army on 31 January 1973. 4. Special Court-Martial Order Number 2, issued by Headquarters, U.S. Army Training Center, Infantry and Fort Polk, Louisiana on 15 January 1975, shows the applicant was convicted of willfully disobeying a lawful command, behaving himself with disrespect toward his superior commissioned officer, and being disrespectful in language, on or about 12 November 1974. The court sentenced him to confinement at hard labor for two months, forfeiture of pay for two months, and reduction to the rank/grade of private (PVT)/E-1. 5. The applicant pled guilty in a civilian court in the 30th Judicial District Court in the State of Louisiana, on 3 November 1975, to attempted armed robbery. He was sentenced to 10 years at hard labor in the Department of Corrections of the State of Louisiana. 6. The applicant's immediate commander recommended the applicant's separation from service on 3 September 1976, under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, [Absent Without Leave] AWOL, Desertion)), for conviction by civil court. 7. The applicant acknowledged receipt of the recommended separation memorandum and requested consideration of his case by a board of officers. He indicated his desire to submit a statement in his own behalf; however, his statement is not available for review. 8. After careful consideration of the applicant’s case on 1 April 1977, a board of officers recommended his discharge for misconduct (conviction by civil court). 9. The separation authority accepted the board's recommendation and approved the recommended discharge on 6 April 1977, and directed the issuance of a UOTHC Discharge Certificate. 10. The applicant was discharged on 1 June 1977. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-206 and his service was characterized as UOTHC. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board agreed that the applicant’s discharge characterization is appropriate for 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. 3. 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). Paragraph 33 of the regulation provided that 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 that was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year; or b. When initially convicted by civil authorities of an offense that involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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.