RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 July 2007
	DOCKET NUMBER:  AR20070000308 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. John G. Heck

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, correction of his discharge document.

2.  The applicant states, in effect, that the station or place he was separated that is shown on his discharge document is incorrect and should be changed to read White Sands, New Mexico.  The applicant also states, in effect, that he was sent to a civilian prison in White Sands, New Mexico on 5 January 1982.  He further states, in effect, that prior to his entry into the Armed Forces he was told by the military recruiter that if he was sent to prison, it would not affect his discharge, other than to show conviction by civil court.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 5 January 1982.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on
5 January 1982, the date of his discharge from the Army.  The application submitted in this case is dated 20 December 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 military service records contain a DD Form 4 (Enlistment/ Reenlistment Document - Armed Forces of the United States).  This document 
shows that he enlisted in the U.S. Army Reserve at the Armed Forces Entrance and Examination Station, Albuquerque, New Mexico, for a period of 6 years on 20 June 1980.  The DD Form 4 also shows that he entered active duty in the Regular Army for a period of 3 years on 19 August 1980.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 45N (M60A1/A3 Tank Turret Mechanic).


4.  The applicant's military service records contain a copy of Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 239-159, dated 10 December 1980.  These orders show, in pertinent part, that the applicant was directed to proceed on a permanent change of station for assignment to Headquarters and Headquarters Detachment, 21st Replacement Battalion (Germany) with an availability and reporting date of 10 February 1981.

5.  The applicant's military service records contain a copy of a DA Form 4187 (Personnel Action), dated 20 January 1981.  This document shows, in pertinent part, that the applicant’s duty status was changed from ordinary leave to confined civilian authorities, effective 4 January 1981.

6.  The applicant's military service records contain a copy of a DA Form 4187, dated 20 January 1981, which shows, in pertinent part, the applicant’s duty status was changed from confined civilian authorities to present for duty, effective 9 January 1981.  This document also shows that the applicant was assigned to Company A, 2nd Battalion, 40th Training Brigade, Fort Knox, Kentucky.

7.  The applicant's military service records contain a copy of a DA Form 4187, dated 21 October 1981, which shows, in pertinent part, the applicant’s duty status was changed from present for duty to confined civilian authorities, effective 24 April 1981.  This document also shows that the applicant was apprehended in Albuquerque, New Mexico.

8.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record) which shows in Item 21 (Time Lost) that the applicant was confined by civil authorities from 4 January 1981 through 8 January 1981 and from 24 April 1981 through 5 January 1982.  Item 35 (Record of Assignments) fails to show that the applicant performed principal duty as a clerk at White Sands Missile Range, White Sands, New Mexico.

9.  The applicant's military service records contain a copy of ATZK-AG Form 1704 (Action By Convening Authority), dated 24 December 1981.  This document shows that the applicant was assigned to Company A, 2nd Battalion, 4th Training Brigade (Fort, Knox, Kentucky) and that the major general in command of Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, approved the applicant’s discharge under the provisions of Army Regulation
635-200, Chapter 14, Section III because of conviction by civil court.

10.  The applicant's military service records contain a copy Headquarters,
U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 1-1, dated 4 January 1982.  These orders show that the applicant was assigned to Company A, 2nd Battalion, 40th Training Brigade, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky and that he was reassigned to the U.S. Army Separation Transfer Point, Fort Knox, Kentucky for separation processing and discharge on 5 January 1982.

11.  The applicant’s military service records contain a copy of USAARMC Form 4157 (Statement of Mailing Address).  This document shows, in pertinent part, that the applicant was discharged in absentia because of his civil confinement in the Penitentiary of New Mexico, Santa Fe, New Mexico.

12.  The applicant's military service records contain Service copies (2 and 7)  of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 5 January 1982.  Item 6 (Place of Entry into Active Duty) contains the entry, “Albuquerque, NM” and Item 8 (Station Where Separated) contains the entry, “Fort Knox, KY.”  Item 25 (Separation Authority) shows he was separated under the provisions of Section III, Chapter 14, Army Regulation 635-200 and Item 28 (Narrative Reason for Separation) contains the entry, “Misconduct—conviction by civil court.”   This document also shows that the applicant was discharged under other than honorable conditions on 5 January 1982 and he completed 8 months of net active service during the period under review.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct.  An individual will be considered for discharge and his case initiated and processed through the chain of command to the general court-martial convening authority when initially convicted by civil authorities or action is taken which is tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement for 1 year or more; conviction of an offense involving moral turpitude; or adjudication as a juvenile offender.  An under other than honorable conditions certificate is normally appropriate for a member discharged for conviction by civil court.

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the
DD Form 214 will be the Personnel Qualification Record (PQR), Officer Record Brief (ORB), enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket (MPRJ), or any other document authorized for filing in the Official Military Personnel File (OMPF).

15.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time of the applicant's discharge, contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 6 (Place of Entry into Active Duty) state to enter the city and state from which the member last entered on active duty from civilian life and for Item 8 (Station Where Separated) they state to enter the Army station or installation and state effecting the separation.  The instructions for Item 25 (Separation Authority) state to enter the regulatory or statutory authority cited in directives authorizing separation on copies 2, 4, 7, and 8 only,  The instructions for Item 24 (Character of Service) show, in pertinent part, that Under Other Than Honorable Conditions is an authorized entry for this item.  The instructions for Item 28 (Narrative Reason for Separation) state to enter the reason for separation based on the regulatory or statutory authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the station or place he was separated that is shown on his discharge document is incorrect and should be changed to read White Sands, New Mexico because he “was sent to White Sands where [he] was made a clerk.”  The applicant also contends, in effect, that he was told by the military recruiter that if he was sent to prison, it would not affect his discharge, other than to show conviction by civil court.  However, the applicant provides insufficient evidence in support of his claim.



2.  The evidence of record shows that the applicant's DD Form 214 properly documents that he was discharged under the provisions of Army Regulation
635-200, Chapter 14, Section III, based on his conviction by civil court and that he was discharged under other than honorable conditions.

3.  There is no evidence of record, and the applicant fails to provide official documentary evidence, showing the U.S. Army issued assignment instructions directing him to report to White Sands Missile Range, New Mexico.  However, the evidence of record does show that the applicant was apprehended by civil authorities in Albuquerque, New Mexico on 24 April 1981 and that he was in civil confinement in Santa Fe, New Mexico at the time of his discharge on 5 January 1982.  The evidence of record also shows that the applicant was assigned to Company A, 2nd Battalion, 40th Training Brigade, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky prior to being reassigned to the U.S. Army Separation Transfer Point, Fort Knox, Kentucky for separation processing and discharge (in absentia) on 5 January 1982.  The evidence of record further shows that officials of the U.S. Army Separation Transfer Point at Fort Knox, Kentucky, that processed and issued the applicant’s discharge (in absentia), properly entered “Fort Knox, KY” in Item 8 of the applicant’s DD Form 214.  Therefore, the applicant is not entitled to correction of Item 8 (Station Where Separated) of his DD Form 214.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 January 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
4 January 1985.  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

___LDS__  ___JLP__  ___JGH _  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.




____Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000308
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/26
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19820105
DISCHARGE AUTHORITY
AR 635-200, Chapter 14
DISCHARGE REASON
Misconduct – Conviction by Civil Court
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.0000.0000
2.

3.

4.

5.

6.