ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190007906 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20130015622 on 13 May 2014. Specifically, he 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), dated 14 May 2019 with self-authored statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending period 12 January 1973 * a Volunteer Appreciation Certificate from the Columbus Animal Care and Control Center, dated 2 December 2012 * two character reference letters, dated 7 March and 8 March 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130015622 on 13 May 2014. 2. As a new argument, the applicant states in effect: a. He was only a passenger in the stolen vehicle when the local police at Fort Eustis, VA arrested the three of them. Nevertheless, he was discharged from the Army. He made the mistake of riding with friends in a stolen car. b. It is with a heavy heart and deep regret for the things he in his past that lead to his discharge. He knows that what he did was wrong but he was tired after weeks of training and school. He got a pass, and while walking to town, saw keys in a car, he took it, so he wouldn't have to walk all the way to town, and he got caught. c. He wanted to be a helicopter mechanic and become a pilot. He begs the Board to upgrade his discharge to either an honorable discharge or a medical discharge. He prays for assistance, as he has become a good person because of what happened in his life. 3. The applicant enlisted in the Regular Army on 2 June 1971. 4. The applicant accepted nonjudicial punishment (NJP) on 8 July 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for breaking restriction during basic training at Fort Jackson, SC, on or about 3 July 1971. 5. The applicant's service records contain the following: * U.S. Department of Justice (DOJ), Federal Bureau of Investigation (FBI), arrest report dated 4 October 1971 * Memorandum from the Office of the Adjutant General (OAG), Fort Benjamin Harrison, IN, dated 11 November 1971 * Memorandum from his commander, dated 3 December 1971, showing he was arrested by civil authorities on 11 November 1971. The memorandum further stated: Individual was assigned to Company A, 1st School Battalion Transportation School Brigade, Transportation School Fort Eustis, VA and was AWOL at time of apprehension by civilian authorities. Necessary action was conducted in accordance with paragraph 3-2, AR 190-9. Civilian court action has been taken and sentence has been set. Sentence was suspended and individual will report back to his organization in the near future. Individual is under consideration for action under provisions of section VI Army Regulation 635-206. * DOJ, FBI, arrest report dated 8 February 1972 * Memorandum from the Office of the Adjutant General (OAG), Fort Benjamin Harrison, IN, dated 30 March 1972 * Memorandum from his commander, dated 19 April 1972, showing he was arrested by civil authorities on 11 November 1971. The memorandum further stated: EM remains in civil custody at Newport News, Virginia. As of 19 April 1972 his case has not been brought to trial but is scheduled to be arraigned on 8 May 1972. 6. The applicant was found guilty on 5 June 1972, in Hustings Court of Newport News, VA, of Grand Larceny. He was sentenced to imprisonment in the Penitentiary House of VA, for a period of five years; two years to be served and three years to be suspended. 7. The applicant's commander subsequently notified the applicant 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. 8. The applicant consulted with legal counsel and acknowledged receipt of the commander’s proposed separation memorandum on 17 August 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: * requested consideration of his case by a board of officers * requested a personal appearance before a board of officers * elected to submit the following statement in his own behalf I would like to stay in the Army and make a career out of it. I have lived around the Army my whole life. And in High School I took Army R.O.T.C. I like the Army life. While I was in Basic Training I received Soldier of the Month. I have only one Article 15, for one day AWOL. END OF STATEMENT 9. The applicant's immediate commander formerly recommended the applicant's separation from service on 4 October 1972, under the provisions of Army Regulation 635-206, based on his conviction by a civil court. 10. The applicant's battalion commander recommended approval of his separation on 5 October 1972, under the provisions Army Regulation 635-206. His brigade commander recommended approval of his separation on 13 October 1972, under the provisions Army Regulation 635-206. 11. A discharge board was appointed on 26 October 1972 to consider if the applicant should be discharged under the provision of Army Regulation 635-206, for his civil conviction for grand larceny. The applicant was notified by certified mail on 21 November 1972 that his proceedings would be held on 12 December 1972. 12. The board convened on 12 December 1972 and found that the applicant was undesirable for further retention in the military service because of his conviction by civil court and recommended he be discharged with a DD Form 258A (Undesirable Discharge Certificate). 13. The convening authority directed the applicant's discharge on 10 January 1973, under the provisions of Army Regulation 635-206. He also directed the applicant's reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate. 14. The applicant was discharged on 12 January 1973. The DD Form 214 he was issued shows his service was characterized as UOTHC. It further shows in: * Item 22b (Statement of Service- Total), 7 months and 20 days of creditable service * Item 26a (Non-Pay Periods Time Lost), the entry "30 Jan 72 – 12 Jan 73" * Item 30 (Remarks), includes the entry: "351 days lost time under 10 USC 972 from 1 Sep 71 thru 8 Sep 71 and 30 Jan 72 thru 12 Jan 73" 15. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 13 May 2014. 16. The applicants provides the following for consideration: * a Volunteer Appreciation Certificate from the Columbus Animal Care and Control Center, presented to a catering company on 2 December 2012 * two character reference letters attesting to the applicant's trustworthiness, honesty, being a good neighbor, and was a volunteer for fundraisers 17. 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, record and length of service, the frequency and nature of his misconduct, his civil conviction and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the serious misconduct. The Board considered the certificate and letters provided by the applicant, but found no further evidence of post-service achievements and determined that there was insufficient evidence to support clemency. 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 :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 to amend the decision of the ABCMR set forth in Docket Number AR20130015622 on 13 May 2014. 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), in effect at that time, set 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. ABCMR Record of Proceedings (cont) AR20190007906 6 1