ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20190006063 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to 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 self-authored statement dated 26 February 2019 * DD Form 214 (Report of Separation from Active Duty), for the period ending 17 May 1979 * Vietnam Veterans of America (VVA) Certificate of Service, from Chapter 689, Louisiana Veterans Foundation, for service on 31 August and 5 September 2016 * VVA, Achievement Medal, awarded 21 May 2017 * Louisiana State Penitentiary Anger Management Course completion certificate, dated 18 September 2017 * VVA, Distinguished Service Award for service in 2016-2017 * VVA, Certificate of Recognition, undated * State of Louisiana, Office of the Governor, Letter of Appreciation, dated 10 August 2018 * Angola Camp F Vets/VVA, Distinguished Service Award for 2018 * State of Louisiana, Senator’s letter of gratitude and appreciation, dated 14 November 2018 * Angola Camp F Vets/VVA, Certificate of Service for service on 14 and 18 November 2018 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 he had good conduct from the time of his discharge to present. 3. The applicant enlisted in the Regular Army on 25 August 1977. 4. The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II), shows in: a. Item 21 (Time Lost): * for being absent without leave (AWOL) from on or about 3 November 1978 thru on or about 12 November 1978 * for being confined by civilian authorities from on or about 13 November 1978 thru on or about 16 May 1979 b. Item 27 (Remarks): "Arrested 13 Nov 78 Civilian Auth Leesville LA while in a duty status Chg 2 counts 1st degree murder. Pleaded guilty to 2nd degree murder and sentenced to life imprisonment." 5. The applicant’s service record contains a certified copy of his court proceedings, which show he plead guilty to 2nd degree murder and was remanded into custody on 12 March 1979 after the hearing. 6. The applicant's commander notified the applicant on 19 March 1979 that he was recommending him for discharge from military service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, due to misconduct - civil conviction. The commander noted his request was due to the applicant being convicted of 2nd degree murder on 12 March 1979 in Vernon Parish, Leesville, LA. 7. The applicant waived his right to consult with counsel on 27 March 1979 but acknowledged he was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 14 and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a UOTHC discharge. He waived consideration of his case by, and personal appearance before, a board of officers. He elected not to make a statement in his own behalf. 8. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 14-33, due to his misconduct – civil conviction. His intermediate level commanders also recommended approval of his separation. 9. The applicant underwent a mental status evaluation on 28 March 1979. The relevant DA Form 3496 (Disposition Form - 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. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 20 April 1979, under the provision of Army Regulation 635-200, Chapter 14, and directed he receive a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 17 May 1979. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, and his service was characterized as UOTHC. His DD Form 214 further shows in: * Item 9c (Authority and Reason), the entry "AR 635-200 CHAP 14-33b (1), SPD JKA" * Item 27 (Remarks), includes the entries: "194 DAYS LOST UP 10 U.S.C. 972 from: 781103-781112, 781113-790516” and “MISCONDUCT” 12. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge but withdrew his application on 4 June 1985, prior to board consideration. 13. The applicant provides the following items for consideration: * 6 VVA certificates, including 2 for service, 1 Achievement Medal, 2 Distinguished Service Awards, and 1 Certificate of Recognition * LA State Penitentiary anger management certificate * LA Governor’s letter of appreciation * LA Senator’s letter of gratitude and appreciation 14. In reaching its determination, the Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 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 considered the applicant’s statement, the nature of his misconduct, his civil conviction and whether to apply clemency. The Board found the documents provided by the applicant notable, but did not find them sufficiently mitigating for the seriousness of the civil offense that resulted in his discharge. Based on a preponderance of evidence, the character of service at discharge was appropriate. 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 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) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 3. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-33 (Other Misconduct). Commanders identified Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. An under other than honorable conditions character of service was normally issued for Soldiers discharged under this provision. 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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.