IN THE CASE OF: . BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20190008987 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable condition (general) discharge or 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 1552), dated 31 May 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 the lost time shown on his DD Form 214 (Report of Separation from Active Duty) is incorrect. He was placed under arrest from 11 January through 18 June 1976; there were no days lost in 1975. His commanders knew he had been placed under arrest by civilian authorities for a crime he did not commit. He was 24 years old at the time and he made a very serious mistake. 3. The applicant enlisted in the Regular Army on 23 July 1974. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 8 July 1975, for unlawfully striking another Soldier in the face with his fist, on or about 2 July 1975 * on 8 December 1975, for being absent without leave from on or about 29 November 1975 until on or about 2 December 1975 5. The applicant submitted a statement in his own behalf, wherein he contended: a. He encountered a lot of things such as loud noises in the barracks, dope smoking, drinking, fighting, and misuse of other persons belongings. He tried to get away from the environment that surrounded him and he tried living off post and lying to stay that way. He lived off post before he was brought back because of a fight he had with another Soldier in formation. The platoon leader he had did some checking and found out his wife was not with him; consequently, he was forced to move back to the barracks and everything he tried to rid himself of. b. He did not say anything because he did not want to be considered a tattle tell. He even tried coming in late at night so maybe he could find everyone else asleep but instead, he came in and found "mustard" in his bed or his whole bed was gone. He lied several times to keep peace with everyone and he sought certain freedoms he would have liked to have. He covered up for others that wanted time off but the same people that said they would cover for him would not and he got busted and fined for being absent without leave (AWOL). c. Nobody really knew what was going on so he got in his car and left. The next day at formation, he kept being pushed so he turned and hit back. He came face to face with a captain and he tried to talk to him but it did not do any good. As a result of a few things he had done, he requested to be reconsidered for reenlistment. 6. The applicant was apprehended and confined by civil authorities on 12 August 1976, for rape, armed robbery, kidnapping, grand larceny, and assault and battery with intent to commit 1st degree murder, on or about 12 January 1976. He was confined in Clarksville City Jail, Clarksville, Tennessee. He was convicted and sentenced to not less than six years and not more than 10 years for grand larceny; not less than four years and not more than 10 years for kidnapping; not less than six years and not more than 21 years for assault and battery to commit murder in the first degree; not less than and not more than 99 years for rape, and to serve life for the offense of armed robbery. 7. The applicant was recommended for discharge on 20 October 1976, under the provisions of Army Regulation 635-206, for misconduct, due to conviction by civil court. He acknowledged receipt of the recommendation, waived his rights, and elected not to submit a statement in his own behalf. The separation authority approved the recommended discharge. 8. The applicant was discharged on 12 October 1977, under the provisions of Army Regulation 635-206, for misconduct – conviction by civil authorities. His DD Form 214 confirms he completed 1 year, 4 months, and 2 days of net active service this period and he had 687 days of lost time due to AWOL and confinement. He was issued a DD Form 794A (UOTHC Discharge Certificate). 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant’s discharge characterization is appropriate for the misconduct that led to his discharge. 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. 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. 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. 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 (Personnel Separations), in effect at that time, 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 which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of one year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude. A discharge under other than honorable conditions is normally considered appropriate. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190008987 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1