IN THE CASE OF:	  

		BOARD DATE:	       30 APRIL 2009

		DOCKET NUMBER:  AR20090001681 


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, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, that he would like his discharge upgraded.

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

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 he enlisted in the Regular Army for a period of 3 years on 16 July 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook).   The highest rank/grade he attained during this period of military service was private (PV2)/E-2.

3.  The applicant's records show he was awarded the National Defense Service Medal and the Parachutist Badge.  His records do not show any significant acts or achievements during his military service.

4.  On 8 November 1966, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period from on or about
6 November 1966 to on or about 7 November 1966.  His punishment consisted of a forfeiture of $20.00 pay for one month, and 14 days of restriction and extra duty.

5.  On 6 September 1967, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period from on or about 5 July 1967 to on or about 25 July 1967.  The Court sentenced him to confinement at hard labor for 4 months, a forfeiture of $64.00 pay per month for 4 months, and a reduction to private (PV1)/E-1.  The sentence was adjudged on 6 September 1967.

6.  On 11 September 1967, the convening authority approved so much of the sentence as provides for extra duty and restriction for 45 days, confinement at hard labor for two and one-half months (suspended for 4 months), a forfeiture of $64.00 pay for 4 months, and reduction to PV1/E-1.  

7.  On 11 October 1967, the applicant's sentence to confinement at hard labor for 4 months was vacated and the unexecuted portion of the sentence to confinement at hard labor for two and one-half months was ordered executed.  

8.  On 17 October 1967, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period from on or about 29 September 1967 to on or about 11 October 1967.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $86.00 pay per month for 6 months. The sentence was adjudged on 17 October 1967 and approved on 23 October 1967.

9.  On 16 November 1967, the convening authority suspended the applicant's sentence to confinement at hard labor for 6 months for a period of 5 months and later suspended the sentence for a period of 3 months.


10.  On 11 March 1969, the applicant was arrested by civil authorities in Fayetteville, NC, for the civilian charges of armed robbery and automobile larceny.  He was subsequently convicted of these charges and sentenced to    25-30 years of imprisonment. 

11.  On 29 April 1971, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) for civil conviction.  The applicant subsequently acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers.

12.  On 14 May 1971, the applicant's intermediate commander recommended approval of the applicant's discharge, with the issuance of an Undesirable Discharge Certificate, and remarked that the applicant's sentence to confinement for not less than 25 years warranted his discharge from the Army.  His service prior to his civil conviction was below the standards expected of a member of his grade and time in service.

13.  On 18 May 1971, the applicant's senior commander also recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

14.  On 10 November 1971, a board of officers convened at Fort Bragg, NC.  The applicant was represented by counsel.  The board found the applicant was undesirable for further retention in military service because of his conviction by civil court of offenses involving armed robbery and automobile larceny.  The board further recommended the applicant be discharged with an Undesirable Discharge Certificate.

15.  On 18 November 1971, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206 for misconduct by reason of civil conviction and directed the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 4 October 1972.  The DD Form 214 he was issued at the time confirms he was discharged with a character of service of under other than honorable conditions and issued 

an Undesirable Discharge Certificate.  This form further confirms he completed a total of 4 months and 14 days of creditable active military service and the rest of his enlistment commitment was considered lost time. 

16.  On 15 November 1976, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

17.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative 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.

19.  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’s contends that his undesirable discharge should be upgraded.

2.  The evidence of record shows that the applicant was convicted by a civilian court for charges of armed robbery and automobile larceny and was sentenced to an extensive period of imprisonment.  The evidence of record further shows that the applicant's chain of command initiated separation action against him 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.

3.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general under honorable conditions 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)                                         AR20090001681



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ABCMR Record of Proceedings (cont)                                         AR20090001681



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