IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080008661 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his undesirable discharge.

2.  The applicant states, in effect, that he was under the assumption that his undesirable discharge would be automatically upgraded to a general discharge
6 months after his discharge.  He further adds that he did not do anything wrong during his military service and that his misconduct happened while he was home on leave.  He concludes that he is in need of medical attention and hopes his discharge can be upgraded.

3.  The applicant did not provide any additional documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 1 February 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11E (Armor Crewman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s awards and decorations include the National Defense Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar
(M-16), and the Expert Marksmanship Qualification Badge with Pistol Bar.  His records do not show any significant acts of valor during his military service.

4.  On 20 August 1973, the applicant departed his unit in Germany, in an absent without leave (AWOL) status.  He was subsequently dropped from the Army rolls on 26 August 1973.  He was apprehended by civil authorities on 28 February 1974, and was confined at the Sheridan County Jail, Sheridan, Wyoming, for the civilian charges of aggravated assault and battery with a dangerous weapon.

5.  On 27 February 1974, the applicant appeared before the District Court of the Fourth Judicial District, County of Sheridan, Wyoming, for the civil charges of aggravated assault and battery with a dangerous weapon.  He pled guilty to the charges and was sentenced to 3-5 years of confinement at the Rawlings State Penitentiary, Rawlings, Wyoming. His sentence was subsequently reduced to    2-5 years of confinement. 

6.  On 17 July 1974, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 63-206 (Personnel Separations) by reason of misconduct-conviction by civil court. 

7.  On 26 July 1974, the applicant acknowledged receipt of the commander's intent to separate him.

8.  On 8 August 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation 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 that were available to him.  He waived consideration of his case before a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf.




9.  On 13 August 1974, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-206 because of misconduct-conviction by a civil court.  The immediate commander remarked that a discharge was recommended because elimination for unfitness or unsuitability was not considered appropriate.   He further recommended an Undesirable Discharge Certificate. 

10.  On 14 August 1974, the applicant’s intermediate commander concurred with the immediate commander’s comments and recommended approval of the applicant’s discharge for misconduct with an Undesirable Discharge Certificate.

11.  On 23 August 1974, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200 (that superseded Army Regulation 635-206) by reason of misconduct-conviction by civil court and directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 26 September 1974.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged with an Undesirable Discharge Certificate with service characterized as under other than honorable conditions.  This form further confirms he completed a total of 8 months and 1 day of creditable military service and had 360 days of lost time due to AWOL and confinement.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

13.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 37 of the regulation provided, in pertinent part, the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the US or its territorial possessions.  An undesirable discharge was normally considered appropriate.

14.  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, 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.


15.  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 contends that his discharge should be upgraded.

2.  The Army has never had a policy that allows an automatic upgrade of a Soldier's discharge within 6 months of that Soldier’s separation/discharge.  

3.  The evidence of record shows that the applicant was convicted by a civil court for miscellaneous offenses of a serious nature.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general or an honorable discharge.

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional Department of Veterans Affairs (VA) representative to inquire about his eligibility for benefits. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.

															XXX
      ________________________
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080008661



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ABCMR Record of Proceedings (cont)                                         AR20080008661



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