IN THE CASE OF:	  

		BOARD DATE: 	       29 October 2009

		DOCKET NUMBER:  AR20090007769 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states that he was in prison at the time of his discharge.  He states, in effect, that when he was given his discharge paperwork, he was made to sign them and they were taken back, so he did not know what type of discharge he received until 15 years later.  He further states that after serving
30 years in prison, he is trying to get his life back in order.  He hopes that he can get his discharge upgraded so he can get help in going back to school so he can get a better job.

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 27 September 1976, the applicant enlisted in the Regular Army (RA) for a period of 3 years.

3.  On 14 May 1977, the applicant was reported absent without leave (AWOL) and he was dropped from the rolls (DFR) of the Army as a deserter on 12 June 1977.

4.  A DA Form 4187 (Personnel Action), dated 1 August 1977, shows that on 
29 July 1977 the applicant's duty status was changed from DFR to assigned not joined by reason of CCA [confined civil authorities].  The DA Form 4187 shows that the applicant was apprehended and confined at the Teller County Jail, Cripple Creek, CO pending extradition to Madison County, NC to await trial for his suspected offenses.

5.  On 4 November 1977, the General Court of Justice Superior Court Division of the State of North Carolina, County of Madison convicted the applicant of his offenses.  He was sentenced accordingly.

6.  On 17 November 1977, the applicant's commander informed him that he was initiating administrative separation action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge -Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) due to his conviction by a civilian court.  The commander advised the applicant of his right to have his case considered by a board of officers, to appear in person before a board of 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. 

7.  On 15 December 1977, the applicant, through counsel, acknowledged receipt of notification of the proposed discharge from the service for civil conviction.  He requested to have his case considered by a board of officers as an individual confined by civil authorities and elected not to submit a statement in his own behalf.  He acknowledged that he could be issued a general or a UOTHC discharge and the effects of the issuance of either discharge.  

8.  On 28 December 1977, the applicant's battalion commander recommended the applicant be discharged for conviction by civil court and recommended that he be issued a UOTHC discharge certificate.  The battalion commander also stated that an appeal had been entered in the applicant's civilian case but it had not been acted upon.

9.   On 8 February 1978, the board of officers recommended that the applicant be discharged under the provisions of Army Regulation 635-206 and that he be issued a UOTHC discharge.  

10.  On 17 February 1978, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for a civil conviction, with a UOTHC discharge.

11.  The applicant was discharged on 28 March 1978, in pay grade E-1, under the provisions of Army Regulation 635-206 for a civil conviction.  His character of service was shown as UOTHC and he was issued a UOTHC Discharge Certificate.  He was credited with 7 months and 17 days of net active service with 315 days of lost time.

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

13.  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 Uniformed Code of Military Justice (UCMJ) included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted a UOTHC discharge was considered appropriate.

14.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7b of that regulation 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The evidence of record shows that the applicant was recommended for discharge with a UOTHC discharge by reason of a civil conviction.  The applicant, after consulting with counsel, acknowledged that he could receive a UOTHC discharge.  He has provided no evidence to show that his discharge was unjust at the time of his offenses.  He also has not provided evidence sufficient to mitigate the character of his discharge.

3.  The evidence of record also shows the applicant was convicted and sentenced to civil confinement during the processing of his separation.  Records show the applicant's command ensured that the proper documents were prepared and that his rights were fully protected during separation processing.  Separation was conducted in accordance with applicable regulatory guidelines.

4.  In order to justify correction of a military record, the applicant must show, 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.

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)                                         AR20090007769



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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