IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090013249 


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, upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was born into a military family.  His father served during World War II and completed 33 years of military service, and his mother worked in civil service.

   a.  He states he joined the Army in 1974 and worked very hard in both basic combat and advanced individual training.  He also states that he chose to train in a combat arms military occupational specialty (MOS) and was awarded MOS 13B (Field Artillery).  He adds that he was ready to fight for his country.

   b.  He states he requested assignment at Fort Lewis, Washington, to be close to his family.  He also states this was a mistake because it went against all the reasons he joined the Army.  He adds he ended up with the wrong kind of people, in the wrong places, and he made bad choices involving drugs that ruined his whole life.

   c.  He states he has suffered from mental health issues of major depression and anxiety, and he continues to deal with them; however, he is now able to explain his behavior to his ex-wife and children.  He adds that when he was a child he fell down the stairs, landed on his head, and received years of treatment.

   d.  He states he is a very different person now.  He also states that he worked as a chef and is going to school to become a chemical dependency counselor in order to help people in his community.  He adds that he is a law-abiding citizen and requests favorable consideration of his application by the Board.  
    
3.  The applicant provides, in support of his application, a petition and his discharge document.

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 enlisted and entered active duty in the Regular Army for a period of 3 years on 9 January 1974.  Upon completion of training he was awarded MOS 13B.

3.  On 9 September 1974, the applicant received nonjudicial punishment (NJP) under Article15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 3 August 1974, and for being absent from his place of duty on 13 August 1974.  His punishment consisted of forfeiture of $30.00 for one month, 14 days of extra duty, and 14 days of restriction to the company area.  On 11 September 1974, the applicant appealed the NJP.  The appeal authority granted the applicant's appeal, in part, and the punishment of 14 days restriction was suspended through 7 December 1974.

4.  On 27 January 1975, the applicant received NJP for being absent without leave (AWOL) from 9 January to 13 January 1975.  His punishment consisted of forfeiture of $89.00 for one month and reduction to private (E-1) suspended for 90 days.  On 6 February 1975, the applicant appealed the NJP.  The appeal authority denied the applicant's appeal.

5.  On 12 February 1975, the applicant received NJP for wrongfully having in his possession 0.03 ounces (more or less) of marijuana on 3 February 1975.  His punishment consisted of 14 days of extra duty.

6.  On 8 March 1975, the applicant received NJP for failing to go at the time prescribed to his appointed place of duty on three separate occasions, on
7 February and 10 February 1975.  His punishment consisted of forfeiture of $50.00 for two months, 45 days of extra duty, and 15 days of restriction to the battalion area.  On 18 March 1975, the applicant appealed the NJP.  The appeal authority denied the applicant's appeal on 24 March 1975 and noted that the applicant was in civil confinement at that time and his signature could not be obtained.

7.  A Headquarters, U.S. Army Enlisted Records Center, Fort Benjamin Harrison, Indiana, letter, dated 11 March 1975, subject:  Arrested by Civil Authorities, shows that a Federal Bureau of Investigation report confirmed the applicant was arrested for robbery by the Sheriff's Office, Tacoma, Washington, on 21 October 1974.

8.  On 21 March 1975, the applicant was convicted in the Superior Court of the State of Washington and sentenced to a maximum term of confinement of not more than 20 years.

9.  On 27 March 1975, a bar to reenlistment was approved and imposed against the applicant.

10.  On 5 May 1975, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)), Section IV, based on civil conviction.  The applicant was advised of his rights and the separation procedures involved.

11.  On 2 June 1975, the applicant acknowledged receipt of the notification of separation action for civil conviction and that:

   a.  he was advised he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable is issued to him;

   b.  he requested consideration of his case by a board of officers;
   
   c.  he waived personal appearance before a board of officers;
   
   d.  he elected not to submit statements in his own behalf; and

   e.  he requested representation by military counsel.

12.  On 9 July 1975, the applicant's commander initiated action to discharge him from the U.S. Army under the provisions of Army Regulation 635-206 based on civil conviction for robbery in the state of Washington with confinement for
20 years.  The company commander, battalion commander, and brigade commander each recommended approval of the separation action and that the applicant be discharged with an under other than honorable conditions discharge.

13.  On 25 August 1975, a board of officers was convened at Fort Lewis, Washington, to determine if the applicant should be discharged by reason of civil conviction.  The applicant was unable to appear before the board; however, he was represented by military counsel.  The board considered the evidence presented and found that the applicant should not be retained in the military service because of civil conviction.  The board recommended the applicant be discharged and issued an Undesirable Discharge Certificate.

14.  On 10 October 1975, the major general serving as the general court-martial convening authority, and the authorized separation authority in the applicant's case, approved the recommendation of the board and the applicant's discharge. The commander also directed the applicant be issued an Undesirable Discharge Certificate.

15.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 22 October 1975, under the provisions of Army Regulation 635-206, section IV, based on misconduct - conviction by civil court.  At the time he had completed 1 year,
2 months, and 5 days of net active service.  Item 21 (Time Lost) shows he had 219 days of time lost under Title 10, U.S. Code, section 972.

16.  The applicant's military service records contain no evidence that he suffered from mental health issues.

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

18.  In support of his application, the applicant provides a copy of a petition signed by 15 individuals attesting that that applicant is a law-abiding citizen, a loving father to his children, and attending college to become an alcohol and drug abuse counselor, and that his discharge should be upgraded to under honorable conditions.

19.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct, which included conviction by civil court.  This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action was taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 contends that his under other than honorable conditions discharge should be upgraded to an under honorable conditions discharge because he suffered from mental health issues at the time, he is now alcohol-free, and he has been a model citizen for the past 30 years.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he suffered from mental health issues at the time of his acts of misconduct while serving in the U.S. Army.

3.  Records show the applicant's discharge under the provisions of Army Regulation 635-206, section IV, based on misconduct (civil conviction) was administratively correct and in compliance with applicable regulations in effect at the time.  Lacking 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.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the type of discharge and character of service directed were appropriate.

4.  The applicant's military service records show that prior to his civil conviction and confinement, in the first 14 months of his military service, he received NJP on four separate occasions for his acts of indiscipline.  In addition, he had a total of 219 days of time lost at the time of his discharge.  Thus, the applicant's record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to upgrade of the character of service of his discharge.

5.  The applicant's post-service conduct, the training he is pursuing to serve his community as a drug counselor, and the petition of the individuals in support of his application were also carefully considered.  The applicant's good post-service conduct and being alcohol-free, along with his desire to serve his community as a chemical dependency counselor are noteworthy; however, these alone are insufficient as a basis to warrant an upgrade of his discharge.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090013249



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ABCMR Record of Proceedings (cont)                                         AR20090013249



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