IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220009528 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, in effect, his civil conviction had nothing to do with his military duties. Plus, this was over 40 years ago. His military adjustment is not in question [sic]. 3. The applicant did not provide documentary evidence with his application. 4. A review of the applicant's service record shows: a. He enlisted in the Regular Army on 4 November 1980. b. On 18 April 1983, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-5. Specifically, for having been found guilty, by civil authorities, of four felony indictments – first degree murder, assault (twice), and use of a handgun in the commission of a felony. c. On 10 May 1983, the battalion commander endorsed the company commander’s recommendation for separation. Per paragraph 2, “the Service Member [applicant] has been found and sentenced for four (4) felony indictments as follows: (1) First Degree Murder; sentence – period of his natural life with cred from 21 March 1981 to date; (2) Assault and Battery, sentence – 5 years concurrent; (3) Assault and Battery, sentence – 5 years concurrent; (4) Use of a Handgun in the Commission of a Felony, sentence – 5 years consecutive.” d. The applicant acknowledged receipt of the commander's intent to separate him and was advised by legal counsel on 22 July 1983. He was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded e. Eighth (8th) endorsement, dated 15 November 1983, Subject: Elimination Under the Provisions of Chapter 14, AR 635-200, reflects the Brigade Commander recommended approval. It was also noted the applicant, at the time, submitted an appeal through the [Name] County District Court, which would delay the actual discharge date until final action has been taken on the appeal. A copy of the applicant’s appeal, and the final decision, was not found in his service record. f. On 25 May 1984, the separation authority approved the findings and recommendations of the Board and directed the applicant's discharge under the provisions of AR 635-200, with his service characterized as under other than honorable conditions. As of note, the applicant’s service record is void of the administrative separation board findings and recommendations. g. U.S. Army Aberdeen Proving Ground Orders 108-23, dated 4 June 1984, reflects the applicant was directed to proceed on permanent change of station to the U.S. Army Personnel Control Facility, Fort Dix, NJ, with a reporting date of 11 June 1984. He was reassigned in accordance with paragraph 14-11b(2), AR 635-200 pending the results of the appeal for his civil conviction. h. The applicant's DD Form 214 reflects he was discharged on 29 October 1985, under the provisions of AR 635-200, section II, chapter 14, civilian conviction, with a character of service of under other than honorable conditions. He completed 1 year, 4 months, and 17 days of net active service. He had lost time from 21 March 1982 to 29 October 1985. 5. There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 6. AR 635-200 states, action will be taken to separate a member for misconduct such as civil conviction. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to misconduct - civil conviction. 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. 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 Army Board for Correction of Military Records (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. a. Paragraph 3-7a states 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. Paragraph 3-7b states 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. c. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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. 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) AR20220009528 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1