IN THE CASE OF:  BOARD DATE:  12 March 2020 DOCKET NUMBER:  AR20190012556 


APPLICANT 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 Provisionsof Title 10, U.S. Code, Section 1552)

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge), for the period ending 16 July 1964



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant makes no statement in support of his request.

3.The applicant enlisted in the Regular Army on 31 December 1963.

4.The applicant's commander referred the applicant for a mental status evaluation on14 April 1964.  The psychiatrist diagnosed him as having an immature personalitydisorder.  He was found to be mentally capable to understand and participate in boardproceedings.

5.Before a special court-martial on 29 April 1964, at Fort Leonard Wood, Missouri, theapplicant was found guilty of being absent without leave (AWOL) from on or about10 February 1964 through on or about 21 March 1964.  The court sentenced him toconfinement at hard labor for five months and forfeiture of $25 pay per month for sixmonths.

6.The applicant's juvenile record from the Tulsa County of Oklahoma Court wasprovided to the Department of the Army on 21 May 1964, and is included for review.

7.The applicant's commander notified the applicant that he was initiating actions toseparate the applicant from service under the provisions of Army Regulation 635-206(Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by CivilCourt, AWOL, Desertion)), for fraudulent entry based on the applicant’s concealment ofa civil conviction at the time of enlistment.

8.The applicant's commander formally recommended the applicant's separation fromservice on 27 May 1964, under the provisions of Army Regulation 635-206, by reason offraudulent entry.

9.The applicant consulted with counsel on 3 June 1964 and acknowledged that he hadbeen advised of the basis for the recommended action to separate him under theprovisions of Army Regulation 635-206, for fraudulent entry and its effects; the rightsavailable to him; and the effect of any action taken by him in waiving his rights.

a.He waived a hearing before a board of officers.

b.He elected not to provide a statement in his own behalf.

c.He acknowledged he may encounter substantial prejudice in civilian life if hereceived an undesirable discharge. 

10.The separation authority’s approval memorandum is not available for review.

11.The applicant was discharged on 16 July 1964, under the provisions of ArmyRegulation 635-206, paragraph 13b(2), with Separation Program Number "280" byreason of fraudulent entry.  His service was characterized as UOTHC.

12.The Board should consider the applicant's request in accordance with the publishedequity, 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 dischargeupgrade requests.  The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct, a mental status evaluation, his pre-service civil conviction and the reason for his separation.  The Board found insufficientevidence of in-service mitigation to overcome the misconduct and the applicantprovided no evidence of post-service achievements or letters of reference in support ofa clemency determination.  Based on a preponderance of evidence, the Boarddetermined that the character of service the applicant received upon separation was notin error or unjust.

2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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 


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect atthe time, set forth the basic authority for the separation of enlisted personnel.  Thisregulation provided that:

a.An honorable discharge was a separation with honor and entitled the recipient tobenefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 

b.A general discharge was a separation from the Army under honorable conditions.When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to have warranted an honorable discharge.  

3.Army Regulation 635-206, in effect at that time, set forth the basic authority for theseparation of enlisted personnel due to misconduct (fraudulent entry, conviction by civilcourt, and absence without leave or desertion).  Paragraph 13b of the regulationprovided for action upon discovery of concealment by an individual of his conviction bycivil court of a criminal offense.  It stated:

a.An individual who concealed his conviction by a civil court of a criminal offensefor which he was sentenced to imprisonment, probation, or parole, or given a suspended sentence, for a term exceeding one year, normally will be discharged. 

b.However, if the individual’s general qualifications are such that he is an asset tothe service and no form of civil custody now exists, and/or custody is suspended by civil authorities, his unit commander may request the appropriate commander waive the right to discharge him for fraudulent entry. 

4.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  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 
 
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