IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190007699 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 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Discharge) 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. The applicant refers to a signed statement in support of a Veterans Affairs claim. It states while he was in training he was in a small Georgia town where he got in a fight which resulted in some store windows being broken. A civil suit was filed against him for the windows and the civil suit was dropped, there was no arrest or court case. His commander and first sergeant told him to take a general discharge and that it would be upgraded in 6 months. He had never been in trouble, not before, during or after service. 3. On 20 April 1967, the applicant enlisted in the Army on a 3 year obligation at the age of 17. He completed training and was awarded the military occupational specialty (MOS) 02B (Trumpet Player) and received conduct and efficiency ratings of excellent. He was subsequently assigned to Fort Gordon, Georgia. 4. On 16 August 1967, he received an Article 15 for without authority, failure to go at the time to his appointed place of duty. 5. On 4 September 1967, he was charged and plead guilty to burglary. He was sentenced to 2 years’ probation and fined $75. 6. On 15 September 1967, 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). a. 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. b. The immediate commander recommended separation under AR 635-206, conviction by civil court, based on the following reasons: a conviction by McDuffie County Superior Court, Thomson, Georgia on a charge of burglary, a crime for which the maximum penalty under the UCMJ is in excess of one year. The commander’s recommendation revealed that the applicant had received a trial by Court-martial and the previously mentioned Article 15. c. The chain of command recommended approval of the recommendation for separation and on 24 October 1967, the appropriate commander approved the recommendation for separation. 7. On 24 October 1967, the applicant was discharged accordingly. His service was characterized as UOTHC. He completed 6 months of total active service. His DD Form 214, shows he was awarded sharpshooter for the M16 rifle and had 5 lost days lost time (5 – 9) October 1967. 8. The applicant states that the civil suit was filed against him for breaking the windows, and since he paid for the windows, the charges were dropped. He only took the discharge because his leadership informed him that his discharge would be upgraded in six months. a. A review of the applicant’s records shows that he completed 6 months of his 3 year contractual obligation. He was arrested for and pled guilty to burglary which resulted in him being sentenced to two years’ probation and to pay a fine of $75 (McDuffie County, GA). As a result, his immediate commander recommended separation under AR 635-206, conviction by civil court. b. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge c. Army Regulation 635-206 (Personnel Separations – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), states 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. 9. 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. 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 in the record and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon 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. 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. Conviction by Civil Court states 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) AR20190007699 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190007699 6 ABCMR Record of Proceedings (cont) AR20190007699 5