ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20190001931 APPLICANT REQUESTS: His under other than honorable (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) * three third-party character statements FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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, in effect, he now understands that when he joined the Army as a young man he was not prepared for military life. He feels his service was unjust for the fact that he didn’t understand the severity of the type of discharge he was receiving. He was uneducated on the process of discharges. 3. The applicant enlisted in the Regular Army on 24 April 1970. 4. The applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 2 October 1970, for absenting himself from his unit from on or about 1 October 1970 through on or about 2 October 1970 * on 5 October 1970, for absenting himself from his unit from on or about 2 October 1970 through on or about 5 October 1970 * on 22 October 1970, for stealing a radio on or about 16 October 1970 5. Special Court-Martial Order Number 49, issued by Headquarters, 5th Combat Support Training Brigade, U.S. Army Training Center Engineer, Fort Leonard Wood, Missouri on 5 November 1970, shows the applicant was tried before a special court- martial on or about 25 September 1970 and was convicted of using disrespectful language towards a superior noncommission officer, on or about 24 August 1970. 6. The applicant accepted nonjudicial punishment, under the provisions of Article 15 of the UCMJ, on 5 February 1971, for absenting himself from his unit from on or about 0700 1 February 1971 through on or about 1700 1 February 1971. 7. The applicant was charged and pleaded guilty in Civil Circuit Court of St. Clair County (Illinois), on 19 July 1971, with burglary and theft. He waved his right to trial by jury and was sentenced to be confined in the Illinois State Penitentiary for a term of not less than one and a half years to a maximum of five years. 8. The applicant was notified that his commander intended to initiate actions to separate him from the service under the provisions Army Regulation 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion), by reason of his civil conviction and imprisonment. 9. The applicant acknowledged receipt of proposed separation action on 25 July 1972. He requested military counsel be appointed to represent him in his absence and to present his case before a Board of Officers. He did not desire to make a statement in his own behalf. He did not attend to appeal his conviction by the Circuit Court, St. Clair County, Belleville, Illinois. 10. A Board of Officers convened to consider the applicant's elimination from service due to his civil conviction. The relevant documents and proceedings are not available for review; however, it is presumed he was appointed counsel and all proceedings were followed in accordance with the governing laws and regulations. After careful consideration of the applicant’s case, the board recommended his discharge under the provisions of Army Regulation 635-206, based on his civil conviction. 11. The separation authority approved the recommended discharge on 28 October 1972 and directed the issuance of an Undesirable Discharge Certificate. 12. The applicant was discharged on 10 November 1972, under the provisions of Army Regulation 635-206, based on his civil conviction. The DD Form 214 he was issued shows his service was characterized as UOTHC. 13. The applicant provides third-party character reference letters from his three sisters, each of whom states their opinion that their brother has improved enough to have his discharge upgraded to a general discharge. 14. The Board should consider the applicant's third-party letters and his 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 applicant had limited creditable service, no wartime service no personal meritorious awards and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct or achievement that might have mitigated the misconduct that resulted in the discharge characterization. The Board agreed that the applicant’s discharge characterization is 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190001931 4 1