ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20190005498 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge, and a personal appearance before the Board. 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 self-authored statement dated 10 February 2019 * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with self-authored statement dated 10 February 2019 * Department of Veterans Affairs (VA) Form 21-0958 (Notice of Disagreement), dated 10 February 2019 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, in effect, that he did not commit any crimes to or within the military. As far as the military was concerned, his record was good. It was outside of military life that he received his mark. 3. The applicant enlisted in the Regular Army on 7 May 1969. 4. The applicant accepted nonjudicial punishment on 27 September 1969, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his proper place of duty on or about 26 September 1969. 5. The applicant was arrested in DeKalb County, Georgia, on or about 15 October 1970, for armed robbery and was ordered to remain in jail until his sentence had been imposed. He was found guilty in December 1970 and was sentenced on 5 January 1971 to serve 2 years in the Georgia State Penitentiary. 6. The applicant's commander notified the applicant on 14 March 1972 of his intent to initiate separation actions under the provisions Army Regulation 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)), based on his conviction by a civilian court. He was advised of his right to a hearing before a board of officer, or to waive this right and submit statements in his own behalf, or to waive both of the above rights and to be represented by counsel. 7. The applicant signed a memorandum, on 14 March 1972, wherein he stated he did not intend to appeal his conviction. Additionally, he stated his understanding that he could be discharged under the provisions of Army Regulation 635-206, based on his conviction by a civilian court, and potentially would not be awarded an honorable discharge. 8. The applicant's immediate commander formerly recommended the applicant's separation from service on 14 March 1972, under the provisions of Army Regulation 635-206, based on his conviction by a civil court. The commander stated: [The applicant] was tried and convicted by County Court, for Armed Robbery. He was sentenced to Two (2) years confinement. Because of the nature of the crime, I feel that it would be in the best interests of [the applicant] and the United States Army if he were furnished an Undesirable Discharge Certificate. 9. The applicant underwent a mental status evaluation on 15 March 1972. The relevant DA Form 3822 (Report of Mental Status Evaluation) and Standard Form (SF) 88 (Report of Medical Examination) show he had no significant mental illness, was mentally responsible, and had the mental capacity to understand and participate in board proceedings. 10. The applicant consulted with legal counsel and acknowledged receipt of the commander’s proposed separation action on 15 March 1972 and made the following rights elections: * he waived consideration of his case by a board of officers * he waived personal appearance before a board * he did not wish to make a statement in his own behalf * he waived representation by counsel 11. The applicant's intermediate commander recommended approval of his separation on 30 March 1972, under the provisions Army Regulation 635-206, and recommended he be issued an Undesirable Discharge Certificate. 12. The separation authority approved the recommended discharge on 24 April 1972 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 13. The applicant was discharged on 5 May 1972. The DD Form 214 he was issued shows his service was characterized as UOTHC. 14. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge. After careful consideration, the ADRB denied his requests on 21 July 1977 and 7 June 1978. 15. 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 found insufficient evidence of error, injustice, or inequity; the Board found limited evidence of remorse or post-service honorable conduct that might have helped the Board to grant clemency and upgrade the discharge characterization. Although the applicant’s misconduct occurred in the civilian arena, the severity of the misconduct and the resulting civil court conviction brought discredit to the military and resulted in the applicant’s discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 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 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires 3. 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. 4. 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. 5. 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) AR20190005498 5 1