IN THE CASE OF:	  

		BOARD DATE:	       4 December 2008

		DOCKET NUMBER:  AR20080012723 


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 that his recruiter arranged for his enlistment despite knowing that he had a police record, juvenile jail, and a felony.  He adds that during his hearing, he was given the choice to stay or leave the Army and that he knew if he left the Army he would be ineligible for benefits.  He was also told that after 6 months, his discharge could probably 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 2 years on 1 May 1970.  He placed a "Yes" entry in Item 3 of his DA Form 3286 (Statement of Enlistment), indicating that he had been arrested, cited, charged or held by Federal, State, County, or other law enforcement authorities.  He further completed Part II (Statement of Law Violations and Previous Conditions) of DA Form 3286-3 (Addendum to Statement of Enlistment) indicating that he was arrested, cited, or charged for burglary-receiving stolen property on 30 April 1970 and that the charges were dismissed.  

3.  The applicant's records further show that he completed basic combat training at Fort Leonard Wood, Missouri, and proceeded to Fort Ord, California, to attend advanced individual training (AIT).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

4.  The applicant’s awards and decorations include the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.  His records do not show any significant acts of achievement or special recognition during his military service.

5.  On 11 August 1970, the applicant departed his AIT unit in an absent without leave (AWOL) status.  He was subsequently dropped from the rolls (DFR) of the Army on 9 September 1970.  He was apprehended by civil authorities and returned to military control on 3 November 1970.

6.  The applicant's records show that during an investigation of the applicant's whereabouts, it was revealed that he and another individual were accused of three counts of burglary, receiving stolen property, and taking away personal property of another, on 8 February 1970 in Los Angeles, California.  He was tried on 7 July 1970 and convicted of one specification of taking away personal property.  The Court sentenced him to imprisonment for 180 days and probation for a period of 3 years.

7.  On 25 November 1970, the applicant pled guilty at a Summary Court-Martial of one specification of being AWOL during the period on or about 11 August 1970 through on or about 3 November 1970.  The Court sentenced him to forfeiture of $44.00 pay for one month and confinement at hard labor for 15 days. 

8.  On 30 November 1970, the convening authority approved the sentence and ordered it executed; however, he suspended the portion of the sentence to confinement at hard labor for 15 days until 13 January 1970.

9.  On 1 December 1970, the applicant’s immediate commander recommended the applicant’s discharge in accordance with paragraph 23 of Army Regulation 635-206 (Personnel Separations).  The immediate commander remarked that there appeared to be sufficient evidence to suspect fraudulent enlistment. 

10.  On 2 January 1971, the applicant’s immediate commander notified the applicant that he was being considered for elimination from the service for fraudulent enlistment in accordance with Army Regulation 635-206.  The applicant acknowledged receipt of this notification on the same date.

11.  On 5 January 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation for fraudulent enlistment, 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.

12.  The applicant further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life in the event a general under honorable conditions discharge was issued to him.  He further understood that as a result of the issuance of an undesirable discharge, under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and state law and that he may expect substantial prejudice in civilian life.

13.  On 7 January 1971, the applicant’s intermediate commander recommended the applicant be discharged with an Undesirable Discharge Certificate.  He further remarked that the applicant had a history of difficulties with civilian and military authorities and that he did not consider it possible for the applicant to function properly in a military environment. 

14.  On 2 February 1971, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-206 and directed he be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 5 February 1971.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 5 months and 23 days of creditable military service and had 102 days of lost time.

15.  On 27 June 1975, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

16.  Army Regulation 635-206, in effect at that time, established policy and procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent entry into the service, conviction by civil court, and absence without leave or desertion.  Fraudulent entry was the procurement of an enlistment through any deliberate material misrepresentation, omission or concealment which, if known at the time, might have resulted in rejection.  Individuals determined to have enlisted due to fraudulent entry would be released from custody and control due to void service. Paragraph 24 of the regulation provided, in pertinent part, the convening authority is authorized to order discharge or direct retention in the military service for fraudulent enlistment or when disposition of an individual has been made by a civil court of the US or its territorial possessions.  An undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Personnel Separations) provides the policies and procedures for the separation of enlisted personnel.  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.

18.  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 discharge.  

3.  The evidence of record shows that the applicant was charged with a civilian offense prior to his enlistment and indicated that the charges were dismissed.  Additionally, while undergoing AIT, the applicant departed his unit in an AWOL status during which he was convicted for his civilian offense and was sentenced to imprisonment.  Upon his return from AWOL, he was also convicted by a court-martial. 


4.  The evidence of record further shows that the applicant's chain of command initiated separation action against the applicant and that he was accordingly notified.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.  Therefore, the applicant is not entitled to a general or an honorable discharge.

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.


															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)                                         AR20080012723



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ABCMR Record of Proceedings (cont)                                         AR20080012723



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