ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 October 2020 DOCKET NUMBER: AR20200001975 APPLICANT REQUESTS: His dishonorable discharge be upgraded to an under honorable conditions (general) 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 28 November 2019, with self- authored statement 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 it is not correct to allow a civilian issue to tarnish his service record. He has no record of his discharge as he was in civilian incarceration at the time. He admits he didn't always obey the rules in his teens and twenties but has always considered his service to have been honorable. Having learned from his mistakes, he has completed a degree in ministry and has become an ordained pastor. 3. Following prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 17 March 1984. 4. A DA Form 4187 (Personnel Action) shows the applicant's duty status was changed from present for duty to confined by civilian authorities, effective 29 November 1985. 5. A Commonwealth of , Court of Justice, Judgment and Sentence on Plea of Guilty, dated 24 October 1986, shows the applicant pled guilty to and was found guilty of first degree murder. He was sentenced to 20 years' confinement. 6. A Military Police Desk Blotter entry, dated 27 October 1986, shows the applicant pled guilty to murder and was sentenced to 20 years' confinement. 1 7. The applicant's immediate commander notified the applicant on 4 December 1986 that he was initiating separation actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-5, based on the applicant's civilian conviction. The applicant was advised of his administrative rights. 8. The applicant acknowledged the separation action notification on 4 December 1986 and waived all of his administrative rights, including his right to counsel. 9. The applicant's immediate commander formally recommended the applicant's separation from service on 4 December 1986. In his recommendation, he noted the applicant was in an absent without leave status due to his civilian confinement, as of 28 November 1985, and he had received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice, while stationed in Korea. The commander recommended the applicant be discharge with an under other than honorable conditions (UOTHC) discharge. 10. The separation authority approved the recommended discharge on 15 January 1987, by reason of the applicant's civilian conviction, and directed that his service be characterized as UOTHC. 11. The applicant was discharged on 29 January 1987, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of civilian conviction. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 12. A Soldier's service encompasses both on and off duty time and under the applicable regulation, civilian convictions are utilized as both a determination of a reason for separation and as a factor in determining in the characterization of service. 13. The applicant has not provided any support documentation related to his post- service life or accomplishments. 14. The Board should consider the applicant's statement for consideration of granting relief in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 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. 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. 1/19/2021 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 635-200 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 14–5 provides that a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present: (1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended. (2) The sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. (3) A Soldier convicted by a civil court will be reduced to the lowest enlisted grade. 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//