ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 September 2019 DOCKET NUMBER: AR20190011239 APPLICANT REQUESTS: In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or 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 13 September 2018 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 he did nothing wrong while on active duty and he believes the record should reflect this. 3. The applicant enlisted in the Regular Army on 24 September 1969, at 19 years of age. 4. The applicant was confined by civilian authorities on 3 March 1970. The specifics of the arrest, confinement, and conviction are not of record. 5. By memorandum from the Assistant Adjutant General, Adjutant General Section, Fort Ord, California, the applicant was notified on 15 July 1970 that based on his civilian conviction, he was being considered for discharge. The appeals statement indicates the applicant was convicted of second degree burglary, which he did not intend to appeal. 6. The applicant signed a Statement of Counseling on 23 July 1970, wherein he waived his rights to a personal appearance with counsel before a board of officers. He noted that if issued a UOTHC discharge, he may be ineligible for many or all benefits as a veteran. 7. A DA Form 2496 (Disposition Form), dated 3 August 1970, shows his unit initiated separation actions against the applicant under the provisions of Army Regulation 635- 206 (Personnel Separations ? Discharge ? Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), by reason of his civilian conviction. He is shown to have had 15 days of lost time, from on or about 18 March through on or about 3 April 1970. His conduct and efficiency ratings were shown as unsatisfactory. 8. The separation authority approved the recommendation for discharge on 16 September 970, under the provisions of Army Regulation 635-206. He directed the applicant be reduced to the lowest enlisted grade and issued a DD Form 794A (UOTHC Discharge Certificate). 9. The applicant was discharged on 23 September 1970. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-206, due to his civilian conviction, and his service was characterized as UOTHC. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1. 10. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 11. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense 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, his civilian conviction and incarceration, and the reason for his separation. The Board found insufficient evidence of in-service mitigation 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 :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 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 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 the time, set forth the basic authority for the separation of enlisted personnel. This regulation provided that: 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. A Soldier may be considered for discharge when initially convicted by civil authorities if a punitive discharge is authorized for the same or closely related offense under the Uniform Code of Military Justice (UCMJ) including juvenile offenses. 3. Army Regulation 635-206, in effect at the time, provided that a Soldier could be separated for conviction of a crime by a civilian court. 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) AR20190011239 3 1