ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20190007334 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 12 April 2019 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 12 April 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, his discharge was based on a civil conviction and not his military service. He volunteered to serve his country when he was 18 years old. He finished basic training and earned a marksmanship badge. He finished advanced individual training and earned military occupation specialty (MOS) 52B (Mobile Electric Power Generator); he was in the top half of his class. He had no problems in the service and was discharged for a civil conviction. No consideration was given to his age or circumstances surrounding his military service. 3. The applicant enlisted in the Regular Army on 30 November 1971. 4. The applicant's service records show: a. He was reported absent without leave (AWOL) from the U.S. Army Overseas Replacement Station (USAOSREPLSTA) in Oakland, California, from on or about 28 June 1972 through on or about 7 February 1973. b. He was returned to military control and placed in confinement at Fort Campbell, Kentucky, from on or about 8 February through on or about 19 March 1973. c. He was returned to civilian authorities for confinement, from on or about 20 March through on or about 5 June 1973. d. He was listed as AWOL from his unit at Fort Campbell, Kentucky, on or about 2 July 1973. He was dropped from the rolls of the Army, on or about 3 July 1973. e. He was listed as being In Hands of Civilian Authorities (IHCA), on or about 4 June 1973, for the charge of armed robbery, in which he was initially arrested on or about 16 May 1972. 5. The applicant was found guilty in Shelby County, Tennessee, on or about 7 January 1974, of 2 counts of robbery with a deadly weapon and ordered to be remanded into the custody of the Warden of the State Penitentiary. The sentenced was set on 21 January 1973; he was ordered to serve not less than 5 years at the Shelby County Penal Farm. 6. The applicant's commander notified the applicant on 25 January 1974 of his intent to initiate actions to separate him prior to his normal expiration term of service (ETS) date, 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 officers, 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 consulted with legal counsel and acknowledged receipt of the commander’s proposed separation memorandum on 9 February 1974. Additionally, he stated he had been advised by counsel and acknowledged 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. He stated he did not intend to appeal his conviction and made the following rights elections: * waived consideration of his case by a board of officers * waived personal appearance before a board of officers * elected not to make a statement in his own behalf * waived further representation by counsel 8. The applicant's immediate commander formerly recommended the applicant's separation from service on 5 March 1974, under the provisions of Army Regulation 635-206, based on his conviction by a civil court for robbery with a deadly weapon. He recommended the applicant be issued a DD Form 258A (Undesirable Discharge Certificate). 9. The applicant's intermediate commander recommended approval of his separation on 6 March 1974, under the provisions Army Regulation 635-206. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 11 March 1974. He directed the applicant be reduced to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate. 11. The applicant was discharged on 4 April 1974. The DD Form 214 (Report of Separation from Active Duty) he was issued shows his service was characterized as UOTHC. The DD Form 214, further shows in: * Item 16a (Primary Specialty Number and Title), 09C Basic Trainee * Item 18c (Total Active Service), 5 months and 19 days of creditable service * Item 21 (Time Lost), 686 Days * Item 27 (Remarks), includes the entries: "686 Days Lost Under 10 USC 972" 12. The Board should consider the applicant's statement 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, his service record, the frequency and nature of his misconduct, his civil conviction and whether to apply clemency. The Board found no in-service mitigation to overcome the severity of the misconduct and the applicant provided no post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that clemency was not warranted and that the character of service the applicant received at separation 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. X CHAIRPERSON 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.