IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090009227 


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 discharge under other than honorable conditions be upgraded to an honorable or general discharge.

2.  The applicant essentially states that he was arrested and convicted of first degree armed robbery in 1977 in the State of Washington, but since that time he has no criminal history.  He also states that he has received a full and unconditional pardon from the State of WA in regard to the aforementioned offense and his civil rights have been restored to include the right to obtain and own a firearm.  He further claims that he was only convicted of robbery of $12.00, and believes that an upgrade to his discharge would be just and fair.  His discharge cost him his veterans status, benefits and military career.

3.  The applicant provides a letter, dated 15 April 1985, from the State of WA, Board of Prison Terms and Paroles, Olympia, WA restoring his civil rights, dated 14 January 1985; a letter, dated 4 October 2004, from his employer congratulating him on his 20th anniversary with that company; a letter, and a full and unconditional pardon, dated 9 December 2008, from the Governor of the State of WA 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 enlisted in the Regular Army on 12 January 1976.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was then reassigned to Fort Lewis, Washington for what would be his first and only permanent duty station.  

3.  On 20 February 1977, the applicant was confined by civil authorities and charged with robbery in the first degree while armed with a deadly weapon, namely, a handgun.  He pled guilty to this crime on 6 April 1977, and on 17 May 1977, he was sentenced to 20 years imprisonment.  

4.  On or about 24 May 1977, the applicant's commanding officer advised him that he proposed to take action to effect his separation from the United States Army under the provisions of Army Regulation 635-206 (Discharge Misconduct [Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion]).  He also informed the applicant of his rights.

5.  In a letter, dated 19 July 1977, the applicant acknowledged that he had been advised by counsel 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 requested consideration of his case before a board of officers and requested to personally appear before this board.  He elected not to submit statements in his own behalf, but requested representation from military counsel.  He also acknowledged that he understood that, as a result of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.

6.  On 26 September 1977, a board of officers convened, and after carefully considering the available evidence found the applicant was unacceptable for further military service.  The recommendation was that the applicant be discharged and issued an Under Other Than Honorable Conditions Discharge Certificate.  

7.  On 31 October 1977, the proper authority approved the recommendation of the board of officers, and directed that the applicant be issued a DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions).  He also directed that the applicant be reduced to the lowest enlisted grade immediately.  On 7 November 1977, the applicant was discharged accordingly.  His military records do not show that he was awarded any personal decorations.

8.  A Federal Bureau of Investigation (FBI) Report indicated the applicant was arrested or received at the Santa Ana, California Sheriff's Office on 22 February 1988 and charged with kidnapping, assault with a deadly weapon, and rape by force.  This FBI Report does not include the disposition of these charges.  

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.  The applicant provided evidence which essentially shows he was released from confinement on 3 July 1979 and placed on parole.  A letter, dated 15 April 1985, from the State of WA Board of Prison Terms and Paroles, informed the applicant that as part of his Final Discharge Restoring Civil Rights his political rights, including his right to vote, had been restored.  This letter also advised him that his right to own or possess firearms was not restored by this action, and the Federal statutes prohibited possession or purchase of a firearm by an ex-felon.  

11.  The applicant provided evidence that show he was provided a full and unconditional pardon, on 9 December 2008, from the Governor of the State of WA.  He also provided an accompanying letter, dated 9 December 2008, from the Office of the Governor of the State of WA which stated, in part, that his pardon did not expunge his record or otherwise delete his felony conviction, and that only the Court that issued the sentence possessed the power to do that.  

12.  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.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides, in pertinent part, 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.  This same regulation also provides, in pertinent part, 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 discharge under other than honorable conditions should be upgraded to an honorable or general discharge. 

2.  The applicant's contention that he has had no criminal history since 1977 was considered.  However, an FBI Report indicates the applicant was arrested or received at the Santa Ana, California Sheriff's Office on 22 February 1988 and charged with kidnapping, assault with a deadly weapon, and rape by force.  The FBI report does not include the disposition for these charges. 

3.  The fact that the Governor of the State of WA pardoned the applicant for his felony conviction which led to his discharge from the Army was also considered.  However, that pardon did not expunge his record or otherwise delete his felony conviction.  That pardon also does not constitute that an error or injustice occurred when he was discharged due to a civil court conviction.  Furthermore, forgiving transgressions from prosecution or punishment is quite different from granting recognition and entitlements that have been forfeited due to misconduct.

4.  Additionally, the applicant's contention that he was only convicted of robbery of $12.00 was also considered.  However, the amount of money involved in the robbery is irrelevant, as his conviction for robbery in the first degree while armed with a deadly weapon was a Class "A" felony, which is the most severe type of felony in the State of WA.  

5.  The applicant was convicted of robbery in the first degree while armed with a deadly weapon, namely, a handgun, and was sentenced to 20 years imprisonment 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 that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant an upgrade.  Absent such evidence, regularity must be presumed in this case.

6.  The applicant's entire record of service was considered.  However, the applicant was not awarded a personal decoration which might have warranted a general discharge, and his record of misconduct so far outweighs his record of military service that an upgrade of his discharge cannot be justified.  

7.  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)                                         AR20090009227



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ABCMR Record of Proceedings (cont)                                         AR20090009227



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