BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090004496 


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 his undesirable discharge be upgraded.

2.  The applicant states, in effect, that he takes full responsibility for his actions.  He states he requested assistance from his chain of command for substance abuse issues and to see the birth of his child.  He states he joined the service at 18 years of age and he was very much influenced by peer pressure.  He states he wanted to be with his pregnant girlfriend; therefore, after being denied leave by his chain of command he departed absent without leave (AWOL).  He states he was returned to his unit by military police.  He states that he was young and he did not realize the consequences of his actions.  He quickly became addicted to drugs and alcohol and he made bad decisions and he took inappropriate actions.  He states he is requesting an upgrade of his discharge due to significant health problems and his desire to obtain health care from the Department of Veterans Affairs (VA).  

3.  The applicant provides no additional evidence or official documentation 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 military personnel records show that, on 3 June 1975, at the age of 19, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 13B (Field Artillery Crewman).

3.  On 10 October 1975, the applicant was assigned to A Battery, 2nd Battalion, 19th Field Artillery at Fort Hood Texas.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 12 December 1975, 
22 March, and on 15 April 1976.  His offenses included wrongful possession of marijuana, being disrespectful towards a noncommissioned officer (NCO), failure to obey a lawful order from an NCO, two specifications of being absent from his appointed place of duty, and for breaking restriction.

5.  On 1 May 1976, the applicant departed AWOL.  On 11 May 1976, his status was changed from being AWOL to civil confinement.  On 2 June 1976, the applicant pled guilty in the County Court of Los Angeles, CA to second degree burglary.  On 30 June 1976, he was sentenced to 3 years of probation and 
51 days in the county jail.  He was given credit for the 51 days he had already spent in jail.  On 2 July 1976, he was returned to military control.

6.  The equivalent crime and maximum punishment under The Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1969 (Revised edition) would be: Article 129, burglary - dishonorable discharge, reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, and 10 years in confinement.

7.  The applicant's commander advised him that he was being recommended for separation because of misconduct (civil conviction) under the provisions of paragraph 33a of Army Regulation 635-206 (Personnel Separations).  The commander stated the applicant had been convicted of burglary on 9 June 1976 and he was sentenced to serve 3 years on probation.


8.  The commander advised the applicant of his right to have his case considered by a board officers; to appear in person before a board officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge, and request his case be presented before a board of officers.

9.  On 15 July 1976, the applicant waived all of his rights, did not submit a statement in his own behalf, and indicated that he did not intend to appeal his conviction for burglary or the sentence of 3 years probation.

10.  On 15 July 1976, the applicant's commander recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-206 due to conviction by a civil court.  

11.  On 17 July 1976, the applicant departed AWOL and on 19 July 1976 his status was changed to confinement with civilian authorities.  On 23 July 1976, he was returned to military control and he was placed on excess leave on 26 July 1976.

12.  On 3 August 1976, the appropriate authority approved the recommendation for separation due to civil court conviction and directed that the applicant be issued an Undesirable Discharge Certificate.

13.  On 9 September 1976, the applicant's status was changed from excess leave to civilian confinement.

14.  On 8 October 1976, the applicant was discharged in abstentia under the provisions of Army Regulation 635-206 due to a civil conviction.  He was issued an Undesirable Discharge Certificate.  The applicant's discharge orders indicate that at the time of discharge he was confined in Clark County Jail, Las Vegas, NV.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

16.  Section VI (Conviction by Civil Court) of Army Regulation 635-206, then in effect, states, in pertinent part, that an individual will be considered for discharge when he has been initially convicted by civil authorities, or action has been 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. 
17.  Army Regulation 635-206 also provides that an individual discharged for conviction by a civil court normally will be furnished an undesirable discharge certificate, however, 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.

18.  Army Regulation 635-200, then and currently in effect, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

19.  Army Regulation 635-200, then and currently in effect, 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 age at time of enlistment was considered.  However, the applicant was no younger than other Soldiers of the same age who successfully completed their service obligations.  Therefore, the applicant’s age is not sufficient to warrant upgrading a properly issued discharge.

2.  A review of the applicant's record of service shows he accepted NJP on three occasions.  He was assigned duty in Texas, convicted of burglary in California, and at the time of his discharge he was in jail again in Nevada.  Therefore, the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no record or documentary evidence of acts of valor, achievement.  Therefore, the applicant is not entitled to a discharge under honorable conditions or an honorable discharge.

3.  The applicant was notified of his rights concerning his discharge.  He waived all of these rights and did not submit a statement in his own behalf.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  The applicant provides various reasons for being AWOL such as his girlfriend's pregnancy and his addiction to drugs and alcohol.  However, he was not discharged for these reasons.  He was discharged due to a civil conviction for burglary. 

6.  The applicant's expressed need to obtain health care from the VA was considered.  However, the ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for benefits.  The granting of veteran's benefits is not within the purview of the ABCMR; therefore, all questions regarding eligibility for VA benefits should be addressed to the VA.

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)                                         AR20090004496



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ABCMR Record of Proceedings (cont)                                         AR20090004496



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