RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060010028 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to a general discharge.

2.  The applicant states, in effect, that he was on leave from Fort Ord, California. He was arrested for a crime of robbery in New York City.  He was told that he would be given legal aid if he accepted part to the crime and nothing happened because he was in the Army.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 October 1970, the date of his discharge.  The application submitted in this case is dated 18 July 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows he was inducted into the Army of the United States on 25 May 1967.  He was assigned to Special Troops Battalion, Fort Dix, New Jersey, to attend basic combat training and assigned to Company A, 1st Battalion, 2nd Brigade, to attend advanced individual training at Fort Ord, California, for training as a light weapons infantryman, in military occupational specialty (MOS), 11B.

4.  He was convicted by a special court-martial on 2 February 1968, of being absent without leave (AWOL) from 28 July 1967 to 2 January 1968.  His sentence consisted of a forfeiture of pay and confinement at hard labor for 6 months.  


5.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 10 December 1968 to 18 February 1969 (71 days) and was confined in the hands of civilian authorities from 19 February 1969 to 31 October 1970.  

6.  The applicant's record contains a copy of an FBI (Federal Bureau of Investigation) report, dated 12 December 1969, which shows that on 25 May 1968, he was charged with attempted armed robbery (knife) and possession of dangerous drugs; on 31 October 1968, felony robbery, possession of a dangerous weapon; on 19 February 1969, dangerous weapon (dangerous hypo instrument) and robbery, second degree; and on 1 December 1969, for felony robbery.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  

8.  The applicant’s Army Discharge Review Board (ADRB) proceeding indicates that the applicant went AWOL while in BCT, but eventually completed BCT after his return to military control.  While AWOL from Fort Ord, he was arrested and then convicted of robbery (2nd Class Felony) and sentenced to 5 years confinement.  The proceedings indicate that he apparently came from a deprived background (New York City).  He had a prior arrest (25 May 1968), for attempted armed robbery with a knife, possession of dangerous drugs but disposition was not in file.  

9.  The applicant submitted a copy of his DD Form 214 which shows that on 
31 October 1970, he was discharged under the provisions of Army Regulation 635-206, due to his civil court conviction.  He had a total of 7 months and 26 days of creditable service and had 987 days of lost time due to AWOL and confinement.  He was issued an undesirable discharge. 

10.  On 4 January 1978, the Army Discharge Review Board, under the Special Discharge Review Program (SDRP), denied the applicant's petition for an upgrade of his discharge.

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.  


12.  Army Regulation 635-200, paragraph 3-7b, provides that 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.

13.  The SDRP, often referred to as the "Carter Program," was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria to include various aspects of service in Vietnam.  Reasons for granting an upgrade under secondary criteria include age, aptitude, education level, alcohol/drug problem, record of citizenship, etc.

14.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstances pertaining to his discharge are unavailable for review.  However, his ADRB proceedings show that his discharge was based on his civil court conviction as indicated on his DD Form 214.  

2.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  As such, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offense.  He has not provided evidence sufficient to mitigate the character of his discharge.

4.  A review of the applicant's FBI report clearly shows that the applicant had a distinctive disciplinary problem with military and civilian authorities. 

5.  The applicant's contention that he would be given legal aid if he accepted part to the crime is noted; however, they do not support an upgrade of his undesirable discharge.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 4 January 1978.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 3 January 1981.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__DED__  __WFC__  _HOF  __   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations 
prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____Hubert O. Fry______
          CHAIRPERSON




INDEX

CASE ID
AR20060010028
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070213
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19701031
DISCHARGE AUTHORITY
AR 635-206
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.