IN THE CASE OF:	  

		BOARD DATE: 	         30 June 2009

		DOCKET NUMBER:  AR20090006063 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he needs a discharge upgrade so he can acquire a job for a steady source of income and for medical benefits.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 records show he enlisted in the Regular Army on 24 March 1972.  He was awarded the military occupational specialty of cook.
3.  The available records do not show any significant acts of achievement or valor during his military service.  Private first class/pay grade E-3 was the highest rank that he achieved.

4.  On 24 November 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having in his possession 0.67 grams, more or less, of marijuana.

5.  On 19 February 1974, the applicant was convicted by the District Court of the 5th Judicial District of the State of Oklahoma of armed robbery.  He was sentenced to civil confinement for 6 years, with 3 years to be served at McAlester State Prison, Oklahoma, and 3 years suspended.

6.  On 21 February 1974, the applicant was informed by his commander that discharge action under Army Regulation 635-206 (Personnel Separations Discharge Misconduct) was being started against him due to his conviction by civil authorities.

7.  The applicant's immediate commander and intermediate commanders recommended approval of his discharge following his guilty plea and civil conviction for armed robbery.

8.  On 22 March 1974, the applicant acknowledged he had been advised by counsel of the basis for the contemplated action to accomplish his separation for conviction by civil court under the provisions of Army Regulation 635-206.  He waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf.  He acknowledged he understood that as a result of issuance 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 law, and that he may expect to encounter substantial prejudice in civilian life.

9.  On 9 April 1974, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 and directed that he be given a DD Form 258A (Undesirable Discharge Certificate).

10.  On 11 April 1974, the applicant was discharged with an undesirable discharge and a characterization of service of under other than honorable 


conditions under the provisions of Army Regulation 635-206 after completing 1 year, 9 months, and 11 days of creditable active service with 99 days of lost time.

11.  Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.

12.  On 14 March 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his under other than honorable conditions discharge.

13.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 accepted NJP for wrongfully having in his possession 0.67 grams, more or less, of marijuana and was convicted by a civilian court for armed robbery.  His records show that he had 99 days of lost time.

2.  Based on the applicant's record of indiscipline, his 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, he is not entitled to either a general or an honorable discharge.

3.  The ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for other programs or benefits.



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)                                         AR20090006063



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ABCMR Record of Proceedings (cont)                                         AR20090006063



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