IN THE CASE OF:	  

		BOARD DATE:	  16 October 2008

		DOCKET NUMBER:  AR20080012340 


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, in effect, that his undesirable discharge (UD) be upgraded to an under honorable conditions discharge (GD).

2.  The applicant states, in effect, that in September 1975, his 19 September 1973 civil conviction was overturned by the North Carolina Supreme Court.  The court threw out a so called confession that was made up by two Fayetteville, North Carolina Police Officers.  He states that he never gave a confession to anyone; however, he still served 15 years of a 30 year sentence. 

3.  The applicant provides a Self-Authored statement 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 record shows that after having served an honorable period of active duty service from 6 October 1970 to 8 May 1972, at which time he immediately reenlisted, and on 9 May 1972, he began the active duty enlistment under review.  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he held and served in military occupational specialty (MOS) 36C (Lineman), and Item 18 (Appointments and Reductions) shows he was promoted to the rank of specialist five (SP5) on 27 April 1973, and that this was the highest rank he held while serving on active duty. 

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two dates for the offenses indicated:  on 7 May 1971, for being AWOL from 4 to 5 May 1971; and on 19 July 1972, for failing to go at the time prescribed to his appointed place of duty on 17 July 1972.

5.  On 19 September 1975, after withdrawing his “Not Guilty” plea , the applicant pled and was found guilty of manslaughter and two counts of murder in the 
2nd degree.  A charge of “arson” against the applicant was dismissed.  He was sentenced to the custody of the North Carolina Department of Correction for a term of 30 years.  

6.  On 26 September 1975, the applicant’s unit commander advised him that he was being recommended for separation by reason of his civil conviction.  

7.  On 2 October 1975, having been advised of the basis for the contemplated separation, its effects, and of the rights available to him, the applicant elected consideration of his case by a board of officers, representation by counsel, and he made a statement in his own behalf.  In his personal statement, he maintained his innocence to all charges against him and stated that he only pled guilty to those felony charges to keep from being put back on death row.  He indicated that with the exception of two Article 15s for minor indiscretions, his service was very good and although he never served overseas, he worked his way up to the rank of SP5.  He further indicated that he had two small children who would need all of his support and that issuing him a GD would allow him to get an Army funded education to aid in providing for their needs.

8.  A Disposition Form (DA Form 2496) contained in the applicant’s Military Personnel Records Jacket (MPRJ), dated 12 December 1975, shows that after considering the evidence presented, a board of officers determined that the applicant was undesirable for retention because of his civil conviction and recommended he be discharged and that he receive an UD.

9.  On 17 December 1975, the separation authority approved the recommendation of the board of officers, and on 12 January 1976, the applicant was discharged accordingly.

10.  The separation document (DD Form 214) issued to the applicant upon his 
discharge shows he was separated under the provisions of Army Regulation
635-206, and that he was issued an UD.  It also shows that at the time of his discharge, he had completed a total of 3 years, 3 months, and 5 days of creditable active military service and he had accrued 721 days of lost time due to being AWOL and in civil confinement.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

12.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  An 
UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge (HD) or GD, under honorable conditions if it were warranted based on the member's record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD should be upgraded to a GD because his civil conviction was overturned was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms that although the arson charge was dismissed, the applicant pled and was found guilty of manslaughter and two counts of 2nd degree murder, and as a result he was sentenced to serve 
30 years in civilian confinement.  Notwithstanding the applicant's assertions to the contrary, no evidence has been provided that confirms the conviction on these charges was overturned, or that the applicant did not commit these offenses.  

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall undistinguished record of service.  The applicant's record did not support the issue of an HD or GD by the separation authority at the time of the applicant's discharge nor does it support an upgrade of his discharge at this time.  

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.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ________x______________
               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)                                         AR20080012340



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ABCMR Record of Proceedings (cont)                                         AR20080012340



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