IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20090001948 


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 to a general discharge under honorable conditions.

2.  The applicant states that he was initially in an absent without leave (AWOL) status because of incarceration and that he regrets the circumstances which led to his incarceration and what happened to others who were involved in the incident.  Nevertheless, while incarcerated, he was trained in heating, ventilation, and air conditioning (HVAC).  He was released after 18 months of imprisonment and has been working with Shell Oil Corporation in HVAC for 29 years.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 9 March 1971, 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 he enlisted in the Regular Army for a period of 3 years on 9 October 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 51K (Plumber).  The highest rank/grade he attained during his military service was specialist five (SP5)/E-5.

3.  The applicant’s records also show he served in the Republic of Vietnam from on or about 4 April 1968 through on or about 3 April 1969.  His awards and decorations include the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bars (M14 and M16).  His records do not show any significant acts of valor during his military service.

4.  On 30 July 1969, the applicant elected to refuse nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties on or about 26 July 1969 and demanded trial by court-martial.

5.  On 11 August 1969, court-martial charges were preferred against the applicant for one specification of being derelict in the performance of his duties on or about 26 July 1969.  Accordingly, on 17 September 1969, referral for trial by a Special Court-Martial appointed by the convening authority was set for the end of September 1969.

6.  On 22 September 1969, the applicant was arrested in Phoenix City, Alabama, for the civilian charge of murder.  He was subsequently confined at a Montgomery, AL, correctional facility awaiting trial.  His DD Form 214 indicates he may have been released to military control on 25 September 1969 (and returned to civil confinement on 21 September 1970).

7.  On 21 October 1969, the applicant appeared before the Circuit Court of Russell County, AL, for the civil charges of manslaughter-first degree.  He was convicted and sentenced to 6 years of imprisonment.

8.  On 21 January 1971, the applicant’s immediate commander recommended that the applicant be separated under the provisions of Army Regulation 635-206 (Personnel Separations) by reason of misconduct-conviction by civil court, with an Undesirable Discharge Certificate. 

9.  On 27 and 28 January 1971, the applicant’s intermediate and senior commanders recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.  

10.  On 1 March 1971, the separation authority approved the applicant’s separation under the provisions of 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 9 March 1971.  The DD Form 214 he was issued confirms he was discharged with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 2 years, 
11 months, and 7 days of creditable military service and he had 23 days of lost time prior to the expiration of term of service (ETS) and 152 days of lost time subsequent to his ETS.

11.  On 26 March 1974, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

12.  On 13 September 1977, the ADRB again denied the applicant’ petition for an upgrade of his discharge.

13.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to civil conviction.  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 sets forth the basic authority 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. 

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 undesirable discharge should be upgraded to a general discharge.

2.  The evidence of record shows the applicant was convicted by a civil court for manslaughter-first degree, an offense of a serious nature, and he was sentenced to serve 6 years in civil confinement.  Accordingly, his chain of command initiated separation action against him as required by regulation at the time.  

3.  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.

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)                                         AR20090001948



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ABCMR Record of Proceedings (cont)                                         AR20090001948



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