IN THE CASE OF:	  

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090008623 


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 undesirable discharge be upgraded to an honorable or general discharge. 

2.  The applicant essentially states that he is a Purple Heart recipient and combat veteran who was incarcerated in the civilian prison system for an armed robbery conviction, but that he has never been in trouble since.  He also states that he served heroically in battle in Vietnam, and requests an upgrade of his discharge based on his duty prior to being incarcerated.  He further claims that he has been a community role model and mentor to local children as well as a faithful husband for over 20 years.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued on 30 April 1968 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 military records show that he was inducted into the Army of the United States on 16 July 1962.  After completing initial entry training, he departed for a tour in Germany on 8 March 1963.  On 9 December 1963, he was honorably discharged, and on 10 December 1963, he enlisted in the Regular Army.  

3.  On 12 July 1966, the applicant departed Fort Sill for an assignment at Fort Devens, Massachusetts, and was assigned to Battery A, 3rd Battalion, 82nd Artillery.  This unit made a permanent change of station to the Republic of Vietnam on 8 August 1966.  He returned to the continental United States on 
22 July 1967 and was assigned to Fort Sill, Oklahoma.  He was honorably discharged on 28 November 1967, and on 29 November 1967, he reenlisted in the Regular Army for a period of 6 years.

4.  On 13 January 1968, the applicant was apprehended by civil authorities and placed in pre-trial confinement.  On 11 March 1968, he was convicted by the District Court of Comanche County, Oklahoma of robbery with firearms in the first degree and sentenced to 5 years of confinement.  

5.  On 15 March 1968, the applicant's commanding officer advised him of the contemplated action to accomplish his separation for conviction by a civil court under the provisions of Army Regulation 635-206 (Personnel Separations).  He also informed the applicant of his rights.

6.  Also on 15 March 1968, the applicant acknowledged that he had been advised by his commanding officer of the basis for the contemplated action to accomplish his separation for conviction by a civil court under the provisions of Army Regulation 635-206.  He waived consideration of his case by a board of officers and elected not to submit statements in his own behalf.  He also waived representation by counsel.  He further acknowledged that as a result of the issuance of an undesirable discharge, he could be ineligible for many or all benefits as a veteran under both Federal and States laws, and that he could expect to encounter substantial prejudice in civilian life.  In a separate undated statement, the applicant indicated that he did not intend to appeal his civil conviction.



7.  On 16 April 1968, the proper authority approved the applicant's discharge under the provisions of Army Regulation 635-206 and directed that he be furnished a DD Form 258A (Undesirable Discharge Certificate).  It was also directed that the applicant be reduced to the lowest enlisted grade.  On 30 April 1968, the applicant was discharged accordingly.  His military records do not show he was awarded any personal decorations during his military service.  His military records show that orders were cut on 11 September 1966 awarding him the Purple Heart along with two other Soldiers, but these orders were amended 
3 days later to delete the applicant's name.

8.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that General Orders 74 from Headquarters, 196th Brigade, dated 1966, awarded the applicant the Purple Heart.  However, the Purple Heart is lined through on this form and the order is not contained in the available records.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  A Federal Bureau of Investigation (FBI) Report revealed that since the applicant's discharge, he was convicted of armed robbery in 1972, robbery with a deadly weapon in 1978, and robbery with a deadly weapon in 1990.  

11.  Section VI of Army Regulation 635-206, then in effect, essentially provided that an individual would be considered for discharge when he has been initially convicted by civil authorities, or action taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  This regulation also provided that an individual discharged for conviction by civil court normally would be furnished a Discharge Certificate Under Other Than Honorable Conditions except that 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.

12.  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.



13.  Paragraph 3-7b of the same 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.  The applicant contends that his undesirable discharge should be upgraded to an honorable or general discharge.

2.  The applicant's claim that he was awarded the Purple Heart for being wounded in Vietnam was considered.  While orders were issued in1966 awarding him the Purple Heart, the Purple Heart is lined through on his DA Form 20 and the order is not contained in his available records. 

3.  Additionally, the applicant's contention that he has not been in trouble since his discharge was considered; however, his FBI record clearly shows otherwise.

4.  The evidence of record shows the applicant was convicted of robbery with a firearm in the first degree and sentenced to 5 years of confinement by a civil court.  As a result, he was properly and equitably discharged under the provisions of Army Regulation 635-206 for misconduct due to his civil court conviction.  The applicant failed to provide evidence which shows his discharge was rendered unjustly or in error. 

5.  The applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general 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)                                         AR20090008623



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ABCMR Record of Proceedings (cont)                                         AR20090008623



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