IN THE CASE OF:	  

		BOARD DATE:	        19 MARCH 2009

		DOCKET NUMBER:  AR20080018669 


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 be upgraded to an honorable or general discharge. 

2.  The applicant essentially believes that the type of discharge he received is too severe.

3.  The applicant provides page 8 of a Department of Veterans Affairs (VA) Directive 6609 (Mailing of Personally Identifiable and Sensitive Information) and a Department of VA Mailing Transmittal List in support of this 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 military records show that he was inducted into the Army of the United States on 22 April 1969.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic), and was later awarded MOS 64B (Heavy Truck Driver).  However, prior to completing advanced individual training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit on or about 
7 July 1969, and remaining so absent until on or about 13 July 1969.  His punishment consisted of a forfeiture of $43.00 pay per month for 2 months and restriction to the limits of Fort Huachuca, Arizona for 30 days.

3.  The applicant departed for the Republic of Vietnam on 7 October 1969, and was initially assigned to the 556th Transportation Company.  On 10 March 1970, he was reassigned to the 538th Transportation Company.  While assigned to this company, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for violating a lawful general regulation by being in an off-limits area.  His punishment consisted of a forfeiture of $50.00 pay per month for 1 month, 
14 days of extra duty, and 14 days of restriction.  

4.  The applicant returned to the continental United States on 6 October 1970, and it appears that he had a reporting date to Fort Bliss, Texas of 11 November 1970.  However, it does not appear that he reported on that date, and he was placed in an absent without leave (AWOL) status.  He returned to military control on or about 17 December 1970, and was assigned to the Special Processing Detachment, Headquarters Command, Fort Bliss, Texas on 19 December 1970.  

5.  On 8 February 1971, the applicant again went AWOL, and he was dropped from the rolls of the Army on that date and classified a deserter.  On 8 July 1971, he was convicted by a civil court of burglary of a motor vehicle, and he was sentenced to 3 years of confinement in the Texas Department of Corrections, but this sentence was suspended, and he was placed on probation for 3 years.  On 21 July 1972, the District Attorney of Travis County, Texas filed a written report that the applicant had violated his probation by failing to remain at the Patrician Movement in San Antonio, Texas until medically discharged and for committing the offense of burglary subsequent to being placed on probation.  The applicant was placed in confinement on 21 July 1972, and on 5 September 1972, he was sentenced to confinement in the Texas Department of Corrections for not more than 3 years, with his sentence commencing from the date of his confinement on 21 July 1972.

6.  On 13 June 1973, the applicant's commanding officer advised him that he was being recommended for separation from the United States Army because of misconduct due to his civil conviction under the provisions of Section VI, Army Regulation 635-206.  He was also advised of his rights.

7.  On 15 June 1973, the applicant waived all of his rights, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood, as a result of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.

8.  On 3 July 1973, the proper separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, and directed that he receive an Undesirable Discharge Certificate.  It was also directed that the applicant be reduced to the rank and pay grade to private/E-1.  On 11 July 1973, the applicant was discharged accordingly.  His military records do not show that he was awarded any personal decorations.

9.  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.

10.  Section VI of Army Regulation 635-206, then in effect, essentially provided that an individual would be considered for discharge when he has been initially convicted by civil authorities, or action taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ is death or confinement in excess of 1 year.  This regulation also provided that an individual discharged for conviction by civil court normally would be furnished an Undesirable Discharge Certificate except that an Honorable or General Discharge Certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

11.  The equivalent crimes and their maximum punishment under the Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1969 (Revised edition) provided the following:

	Article 129, Burglary - dishonorable discharge, reduction to lowest enlisted grade, a forfeiture of all pay and allowances, and 10 years of confinement;

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides, in pertinent part, 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.

13.  This same regulation also provides, in pertinent part, 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 undesirable discharge should be upgraded to an honorable or general discharge. 

2.  The applicant's contention that his discharge was too severe was considered. However, had the applicant been found guilty by a court-martial for either of his burglary offenses, he could have received a dishonorable discharge instead of an undesirable discharge.  Additionally, 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.

3.  The evidence shows that the applicant twice accepted NJP under Article 15 of the UCMJ, and that he was absent in desertion when he was convicted by a civil court for burglary and sentenced to 3 years of confinement with probation.  It also shows that he violated his probation by failing to remain at the Patrician Movement in San Antonio, Texas until medically discharged and for committing burglary a second time, and he was sentenced to not more than 3 years of civil confinement.  As a result, he was properly and equitably discharged under the provisions of Army Regulation 635-206 for misconduct due to his civil court conviction.  The applicant also failed to provide evidence which shows that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant's entire record of service, which included a tour in Vietnam, was considered.  However, the applicant was not awarded a personal decoration which might have warranted a general discharge, and his record of misconduct so far outweighs his record of military service that an upgrade of his discharge cannot be justified.  

5.  The applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general 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)                                         AR20080018669



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ABCMR Record of Proceedings (cont)                                         AR20080018669



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