ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20190004499 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. 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) in lieu of DD Form 149 (Application for Correction of Military Record) * National Archives and Records Administration (NARA) Standard Form 180 (Request Pertaining to Military Records) * Letter from Case Management Division, Army Review Boards Agency (ARBA), dated 19 April 2019 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. On 29 August 1969, at the age of 25 years old, the applicant enlisted in the Regular Army for a term of 2 years. 3. On 18 January 1970, enroute to advanced individual training, he went absent without leave (AWOL). His record contains a report for suspension of favorable personnel actions, which shows on 18 February 1970, he was dropped from the unit rolls; on 23 August 1970, he was apprehended by civil authorities and charged with assault and battery by means of force; and he was returned to military control on the same date. 4. On 15 March 1971, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion),. The applicant submitted a statement indicating that he would except [accept] the discharge. 5 The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action, understood his rights, waived personal appearance before a board, and elected not to submit a statement in his own behalf. 6. The immediate commander recommended separation under AR 635-206, Section VI, paragraph 33a, conviction by civil court, based on the following reasons: On 11 January 1971, the applicant was convicted of assault and battery while unarmed, by means of force likely to produce great bodily injury, in which, he was sentenced to imprisonment for five years. The commander’s recommendation revealed that the applicant had received nonjudicial punishment on 17 December 1969 for being AWOL from 13 December 1969 to 14 December 1969 and NJP on 12 January 1970, for being AWOL from 5 January 1970 to 10 January 1970. 7. The chain of command recommended approval of the recommendation for separation and on 4 May 1971, the appropriate commander approved the recommendation for separation, directing the applicant be issued an undesirable discharge. 8. On 12 May 1971, the applicant was discharged accordingly. His service was characterized as UOTHC. He completed 9 months and 28 days of total active service. His DD Form 214, shows: * He was awarded or authorized the National Defense Service Medal and the Rifle M-14 Marksman Marksmanship Qualification Badge * 324 Days Lost Under Section 972, Title 10 United States Code, 18 January 1979 to 17 February 1970; 18 February 1970 to 22 August 1970; 23 August 1970 to 12 May 1971 9. On two occasions, the applicant petitioned the Army Discharge Review Board (ADRB) to upgrade his discharge. The ADRB denied the first petition due to insufficient evidence presented to indicate probable material error or injustice. The second petition was denied because the Board determined that the applicant was properly discharged. 10. The applicant provided: * National Archives and Records Administration (NARA) Standard Form 180 (Request Pertaining to Military Records) showing the applicant requested his DD Form 214, all documents from his official military personnel file, and his medical records * Letter from Case Management Division, Army Review Boards Agency, dated 19 April 2019, showing that the application was returned to the applicant for his signature 11. His record shows he enlisted at the age of 25 years old, he had 324 days of lost time, he received two Article 15s, and he was convicted by civil court for assault and battery. He completed 9 months of his 24 months contractual obligation. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. 12. AR 635-206 (Personnel Separations – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), Section VI (Conviction by Civil Court), Section VI, paragraph 33a stated an individual was subject to separation 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 except that an honorable or general discharge certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the applicant’s length of service, the serious nature of his misconduct and whether to apply clemency. The Board determined that he was AWOL as the result of a civil conviction, there were no mitigating factors to consider and that the character of service he received at discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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 – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for fraudulent entry, conviction by civil court, and absence without leave or desertion. Section VI (Conviction by Civil Court), paragraph 33a stated an individual was subject to separation 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. If the offense is not listed in the Table of Maximum Punishments, Manual for Courts-Martial, or is not closely related to an offense listed therein, the maximum punishments authorized by the United States Code or the District of Columbia Code. An individual discharged for conviction by civil court normally will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case. 3. Upon determination that an individual is to be separated with an Undesirable Discharge, the convening authority will direct reduction to the lowest enlisted grade. 4. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel. a. Paragraph 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. 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. c. Paragraph 3-7b 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. 5. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20190004499 4 1