ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190006518 APPLICANT REQUESTS: upgrade his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 is requesting this upgrade so he can become eligible for Department of Veterans Affairs (VA) benefits. 3. The applicant's service records show: a. Having obtained his parent's consent, he enlisted into the Regular Army for a 3-year term on 9 October 1970; he was 17 years old. Effective 9 February 1971, while participating in advanced individual training (AIT), his chain of command promoted him to private (PV2)/E-2. On completion of AIT, orders assigned him to Germany; he arrived on 27 July 1971. b. On 11 November 1971, a summary court-martial convicted him of two specifications of absenting himself from his place of duty, and one specification of failing to be at his appointed place of duty at the time prescribed; his sentence was 30 days' confinement, reduction from PV2 to private (PV1)/E-1, and forfeiture of $71. On 12 November 1971, the summary court-martial convening authority approved the sentence and ordered its execution. c. Effective 13 December 1971, his chain of command promoted him to PV2/E-2. d. On 15 February 1972, a summary court-martial convicted him of four specifications of absenting himself from his place of duty and one specification for failing to obey a superior noncommissioned officer's lawful order; the court sentenced him to 30 days' confinement (suspended for 60 days), forfeiture of $144 for 1 month, and reduction to PV1. e. On 4 October 1972, a special court-martial convicted the applicant of Uniform Code of Military Justice (UCMJ) violations. (1) The court found him guilty of disrespectful behavior toward a superior commissioned officer; dereliction of duty; failure to go to his appointed place of duty; breaking restriction; and two periods of AWOL (21 to 24 August 1972 (3 days) and 7 to 12 September 1972 (5 days). (2) The court sentenced him to 4 months' confinement. On 8 November 1972, the special court-martial convening authority approved the sentence and ordered its execution. As a result, the applicant was sent to the U.S. Army Retraining Brigade at Fort Riley, KS; he arrived on 22 November 1972. f. On completion of his confinement, orders reassigned him to Fort Ord, CA; he arrived on 8 February 1973. g. On 20 March 1973, his Fort Ord unit reported him as AWOL. On 19 April 1973, the applicant returned to military control by surrendering himself to his unit. However, on 23 April 1973, he left again in an AWOL status; his unit dropped him from Army rolls. h. On 2 August 1973, civilian authority arrested and confined the applicant due to multiple charges included was assault with a deadly weapon. Because he was under 21 years of age when he committed the alleged offenses, civilian authority treated him as a juvenile. i. On 18 September 1973, the U.S. Army Enlisted Records Center notified the applicant's unit of his civil confinement. On 21 November 1973, a civilian court convicted the applicant of assault with a deadly weapon. Effective 28 November 1973, orders assigned the applicant to the U.S. Army Personnel Control Facility (PCF) at Fort Ord. On 7 December 1973, the civilian court denied the applicant's request for probation and remanded him to the State's juvenile authority. j. On 12 December 1973, the U.S. Army Training Center, Infantry and Fort Ord notified the applicant via letter of the command's intent to separate him, based on his civil conviction. The letter advised the applicant, since he could not appear in person before a board of officers, he could request counsel, submit a statement in his own behalf, or he could waive the foregoing rights. k. On 19 February 1974, the applicant affirmed he had been advised of the basis for the contemplated separation action and requested the following: consideration of his case by a board of officers, a personal appearance before the board, and representation by military counsel. He elected not to submit a statement in his own behalf. On that same date, the applicant also affirmed he did not intend to appeal his civilian conviction. l. At some point prior to 29 May 1974, the applicant wrote the recorder for the board of officers requesting a personal appearance. He advised the recorder he was being held by the State's Youth Authority. m. On 29 May 1974, a board of officers convened to determine if the applicant should be separated due to his civilian conviction; the regulatory basis for the board was Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)). The applicant was not present, but was represented by a military lawyer. After reviewing evidence and hearing arguments, the board affirmed the applicant was convicted by civilian authority and recommended separation with an undesirable discharge. n. On 10 June 1974, the separation authority approved the board's findings and recommendations, and directed the applicant's undesirable discharge under other than honorable conditions; he cited the separation authority as AR 635-206 and identified the separation program designator (SPD) as 284 (Misconduct – Convicted or Adjudged a Juvenile Offender by a Civil Court during Current Term of Active Military Service). o. On 20 June 1974, the applicant was discharged under other than honorable conditions. His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 8 months, and 22 days of his 3-year enlistment contract, with 350 days of lost time. His DD Form 214 also listed the separation authority as chapter 10 (Discharge for the Good of the Service), AR 635-200 (Personnel Separations – Enlisted Personnel); the SPD was 246 (Discharge for the Good of the Service). The remarks section reflected his specific periods of lost time; one entry showed "20 DAYS, 611112-711201." The applicant was awarded or authorized a marksmanship qualification badge. p. On 1 November 1978, he petitioned the Army Discharge Review Board (ADRB), requesting an honorable character of service; he argued his discharge was improper and inequitable. He requested a personal appearance before the ADRB and indicated he would present evidence at his hearing. (1) On 30 July 1980, the ADRB conducted a records review because the applicant had failed to respond to the notification for his hearing. The ADRB denied his request after determining his discharge was both equitable and proper. (2) The ADRB also noted the applicant's DD Form 214 did not show the proper separation authority and recommended its correction. The applicant's service record does not show this correction was made. q. The applicant's DA Form 20 (Enlisted Qualification Record) indicates he was awarded the National Defense Service Medal; it is not listed on his DD Form 214. 4. During the applicant's era of service, commanders were required to initiate separation action when Soldiers were convicted by civil authority of offenses for which the UCMJ showed more than 1 years' confinement as a maximum punishment. According to the Manual for Courts-Martial, in effect at the time, Article 128 (Aggravated Assault with a Deadly Weapon) carried a maximum punishment of confinement for 3 years. 5. The applicant requests an upgraded character of service so he can become eligible for VA benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits. However, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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, his record of service, the frequency and nature of his misconduct, his civil conviction, the reason for his separation and whether to apply clemency. The Board found no in-service mitigating factors for his misconduct or his civil conviction and the applicant provided none. The Board found the applicant provided no evidence of post-service achievements or letters of reference in support of clemency determination. Based on a preponderance of evidence, the Board determined that there was insufficient evidence to support clemency and that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections stated in the Administrative Note(s) below. 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: With the exception of the corrections in the Administrative Note(s) that follow, 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): 1. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of DD Forms 214. It stated the DD form 214 was the most vital document a separating Soldier would receive; as such, it was of paramount importance that the information be complete, accurate, and in accordance with authorized entries. a. Item 9c (Authority and Reason) was required to show the regulatory authority for the Soldiers separation, along with the associated SPD listed in AR 635-5-1 (SPD). b. Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) was to list awards and decorations given during the Soldier's entire military service. c. Item 27 (Remarks) was to include lost time entries; for enlisted Soldiers, it showed the number of days lost under Title 10, U.S. Code, section 972 (Enlisted Members: Required to Make Up Time Lost). 2. As a result, amend the applicant's DD Form 214 as follows: * Item 9c – delete current entry and replace it with "Section VI, AR 635-206, SPD 284" * Item 26 – add National Defense Service Medal * Item 27 – delete the entry showing "20 DAYS, 611112-711201" and replace it with "20 DAYS, 711112-711201" REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-206, in effect at the time, prescribed procedures for misconduct separations. a. Section VI (Conviction by Civil Court) stated Soldiers who were initially convicted by a civil court were subject to discharge; the Soldier had to have been convicted of an offense for which the maximum punishment under UCMJ included either death or confinement for more than 1 year. b. Soldiers who were confined by civil authority and unable to appear in person before a board of officers were advised via registered mail of the following: the proposed discharge action; the type of discharge that could be issued; and the fact the elimination action was suspended to give him the opportunity to request counsel and, in the event of the Soldier's absence, to have counsel present the Soldier's case before the board; to submit statements in his own behalf; and/or to waive his rights. c. Board of officers were convened to determine whether the Soldier should be retained or discharged. The board's proceedings were to include a verbatim record of its findings and recommendations. The board's available recommendations were limited to either retention or separation; if the determination was separation, the board was to recommend the type of discharge to be issued. On receipt of the board's proceedings, findings, and recommendations, the general court-martial convening authority was required to act on the board's results; the action taken could not be more severe than that recommended by the board. An undesirable discharge under other than honorable conditions was normally furnished to Soldiers discharged under this provision. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 128 (Aggravated Assault with a Dangerous Weapon), UCMJ, included 3 years confinement. 4. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9e (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. b. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the Soldier was given a reasonable amount of time to consult with counsel. Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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. 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. ABCMR Record of Proceedings (cont) AR20190006518 5 1