IN THE CASE OF:	

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090015070 


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 that his undesirable discharge (UD) be upgraded to honorable.

2.  The applicant states he was convicted or adjudged a juvenile offender by a civilian court while on active duty.  He served his time in Vietnam.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was born on 7 September 1948 and enlisted in the Regular Army at 17 years, 9 months, and 22 days of age on 28 June 1966.
3.  During his first period of service he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 31 July 1967 for being absent without leave (AWOL) from 12 July 1967 through 14 July 1967.

4.  He was honorably discharged on 15 November 1968 for the purpose of immediate reenlistment on 16 November 1968.  Prior to reenlisting he served for 2 years, 4 months, and 20 days, including 1 year in Vietnam.

5.  On 16 December 1968, the applicant was declared AWOL when he failed to return from a period of reenlistment leave.  He remained AWOL until 24 December 1968.  What, if any, disciplinary action occurred for this period of AWOL is not of record.

6.  The applicant received additional NJP's as follows on:

	a.  11 March 1969, for AWOL from 24 through 27 February 1969 and

	b.  14 April 1969, for failure to go to his appointed place of duty.

7.  On 30 September 1969, a special court-martial found the applicant guilty of AWOL from 2 June 1969 through 19 September 1969.

8.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant was also AWOL from 5 October 1969 through 3 November 1969 when he was dropped from the rolls.

9.  In accordance with his plea, the Criminal Court for Polk County, Florida, found the applicant guilty of forgery on 15 July 1970.  The record contains no specifics as to the date of the offense, the date of arrest, or the date the Army was notified of his incarceration.  As of this date the applicant was 21 years, 10 months, and 9 days old.

10.  On 14 September 1970, the Criminal Court for Polk County, Florida, sentenced him to 10 years of confinement.

11.  Discharge actions were not commenced until 17 September 1971 due to failure of the Polk County Criminal Court to respond to repeated requests from the Army for the legal commitment paper work.  Upon receipt of pertinent documents, separation actions were commenced under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for misconduct - conviction by a civil court.

12.  On 30 November 1972, the discharge authority approved the discharge, directed the applicant be reduced to the lowest enlisted pay grade, and directed that he receive an Undesirable Discharge Certificate.

13.  The applicant was discharged on 22 December 1972 with a UD.  He is credited with 2 years, 4 months, and 20 days of active service for his first period of service and 6 months and 23 days of creditable active service for his second enlistment.  The DD Form 214 shows he had 1,293 days of lost time.  The authority for separation is shown as Army Regulation 635-206 with separation program number 284 for misconduct (convicted or adjudged a juvenile offender by a civil court during current term of active military service).

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities.  A UD was normally considered appropriate.  The regulation contains no consideration for the age of the Soldier being separated.

15.  Army Regulation 635-200 (Enlisted Personnel) set forth the purpose and policies for enlisted personnel separations.  Chapter 1, in effect at that time, outlined the criteria for characterization of service.  Paragraph 1-13a stated that an honorable discharge was a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty. 
Paragraph 1-13a(1), in pertinent part, stated, "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 1-13b stated that a general discharge was a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was convicted or adjudged as a juvenile offender by a civilian court while on active duty.  He served his time in Vietnam.

2.  The applicant started his second enlistment by returning from leave 8 days late.  He continued his misconduct with additional periods of AWOL and received two additional NJP's and a special court-martial.

3.  Further, while in an AWOL status the applicant was arrested, tried, and convicted of forgery by a civilian court.  While the specifics of the charge and the date of the offense are not of record the offense was significant enough for the civilian court to sentence him to 10 years of confinement. 

4.  The fact that the State of Florida considered the applicant a juvenile, hence the entry on the DD Form 214 has no bearing on the fact that he was discharged for a civilian conviction of a serious offence.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  The applicant's second period of service did not meet acceptable standards for either an honorable or general 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.

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)                                         AR20090015070



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ABCMR Record of Proceedings (cont)                                         AR20090015070



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