RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060011458 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Jerome Pionk

Member

Mr. Edward Montgomery

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 be upgraded.

2.  The applicant states, in effect, that he was not able to appear before a board because he was incarcerated.  He also contends that prior to his incarceration he fought in the war.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 November 1974.  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 was inducted on 9 April 1970.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11D (armor reconnaissance specialist).  He served in Vietnam from 5 September 1970 to 12 September 1971. 

4.  The applicant’s DA Form 20B (Record of Court-Martial Conviction) shows that on 7 June 1971, while in Vietnam, he was convicted by a special court-martial of disobeying two lawful orders.  He was sentenced to be reduced to E-1, to be confined at hard labor for 90 days, and to forfeit $40 pay per month for 2 months. On 3 August 1971, the convening authority approved the sentence but suspended the sentence to confinement for 90 days.

5.  On 13 January 1972, the applicant was convicted by civilian authorities of assault with intent to murder and of theft and was sentenced to serve 25 years.    
6.  The applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-206, for conviction by civil authorities.    

7.  On 30 July 1974, the applicant requested consideration of his case by a board of officers.  A board of officers convened on 7 October 1974 to determine whether the applicant should be eliminated from the service under the provisions of Army Regulation 635-206.  The applicant was unable to appear before the board due to his civil confinement; however, he was represented by military counsel.  The board found that the applicant was undesirable for further retention in the military service because of conviction by civil court.  The board recommended that the applicant be discharged from the Army because of conviction by civil court with the issuance of an undesirable discharge.  On 
5 November 1974, the separation authority approved the findings and recommendation of the board. 

8.  Accordingly, the applicant was discharged on 20 November 1974 with an undesirable discharge under the provisions of Army Regulation 635-206 for conviction by civil court.  He had served 1 year, 7 months, and 2 days of creditable active service with 1105 days of lost time due to civil confinement.     

9.  Evidence of record shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations; however, he withdrew his application.

10.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally considered appropriate.  

11.  Army Regulation 635-200, paragraph 3-7a, provides that 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service included one special court-martial conviction and 1105 days of lost time.  It appears he also committed two serious civil offenses while in the Army.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

2.  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.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged injustice now under consideration on 20 November 1974; therefore, the time for the applicant to file a request for correction of any injustice expired on 19 November 1977.  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

JA_____  __JP____  __EM____  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.



__James Anderholm____
          CHAIRPERSON




INDEX

CASE ID
AR20060011458
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19741120
DISCHARGE AUTHORITY
AR 635-206  
DISCHARGE REASON
Conviction by civil court
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.