IN THE CASE OF:  BOARD DATE:  6 April 2020 DOCKET NUMBER:  AR20190014511 


APPLICANT REQUESTS:  In effect, an upgrade of his under other than honorable conditions (UOTHC) discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 29 November 2019, with self-authored statement

.Fourth District Court for Douglas County, Nebraska sentencing order

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge), for the period ending 1 August 1969



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 states it has been 50 years since his discharge.  In that time, he hascompleted three college degrees and has worked with disabled vets for 30 years,helping them through the trauma of war.  He has developed kidney disease and lost atoe to diabetes and now he needs help.  He believes the Army missed his diagnosis ofdiabetes and kidney problems.  He believes he has paid his debt.

3.The applicant enlisted in the Regular Army on 25 March 1968.

4.An Extract of Military Records of Previous Convictions, dated 27 June 1969, showsthe applicant appeared before a special court-martial, on or about 4 September 1968,where he was found guilty of being absent without leave (AWOL), from on or about17 June 1968 until on or about 29 June 1968, and from on or about 5 July 1968 until onor about 7 August 1968.

5.The applicant pled guilty in the Fourth District Court for Douglas County, Nebraskaon the charge of grand larceny.  He was sentenced to confinement for not less than
one year and not more than three years, from and after 7 March 1969, the date of his sentencing arraignment.  The specifics of the larceny charge are not of record. 

6.On a Form Letter 2, dated 4 July 1969, the applicant declined counsel and waived allof his separation processing administrative rights.  He also indicated he did not intend toappeal his civilian conviction for grand larceny.

7.An undated Information Data Sheet lists seven periods of lost time due to AWOL orconfinement.

8.A DA From 2496 (Disposition Form), dated 8 July 1969, noted the applicantappeared before a civilian court on 7 March 1968 and was sentenced to confinement fornot less than one year and not more than three years.  It further noted the applicant hadfour prior periods of AWOL, totaling 197 days, and a special court-martial conviction.He was in an AWOL status at the time of his civilian offense and under the UniformCode of Military Justice (UCMJ), the maximum punishment for the offense of larceny ofproperty was confinement for five years, total loss of all pay and allowances, and adishonorable discharge.

9.The Acting Commander for the Special Processing Detachment, Fort Riley, on 8 July1969, recommended the applicant be discharged under the provisions of ArmyRegulation 635-206 (Personnel Separations . Discharge . Misconduct - FraudulentEntry, Conviction by Civil Court, AWOL, Desertion), due to a civilian conviction.  Hefurther recommended that he be furnished a DD Form 258A (Undesirable DischargeCertificate).

10.The separation authority approved the discharge recommendation on 17 July 1969,under the provisions of Army Regulation 635-206, for misconduct - civilian convictionsand directed the applicant be issued an Undesirable Discharge Certificate.

11.The applicant was discharged on 1 August 1969.  The DD Form 214 he was issuedshows he was discharged under the provisions of Army Regulation 635-206, due tomisconduct - civilian conviction.  His DD Form 214 further shows he had three monthsand 15 days of creditable active duty service with 359 days of lost time and wasdischarged in the rank/grade of private/E-1.

12.The applicant has not provided and the record does not contain any documentationin support of either the development of any medical conditions while on active duty or ofhis post-service conduct.

13.The Board may consider the applicant's petition, his service record, and hisstatements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board carefully considered the applicants 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, the reason for his separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided insufficient evidence of post-service achievements or letters of support to weigh 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. 

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. 
X CHAIRPERSON


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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
3.  Army Regulation 635-206, in effect at the time, set forth the basic authority for separation of enlisted personnel for misconduct.  An under other than under conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The regulation also provided that an undesirable discharge certificate will normally be furnished to an individual.  
 
4.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides: 
 
 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.  An uncharacterized separation is described warranted if processing is initiated while a Soldier is in entry-level status (180 days of entry onto active duty), except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. 
 
5.  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//