BOARD DATE:	  March 4, 2010

		DOCKET NUMBER:  AR20090016720 


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 upgrade of his undesirable discharge to a general under honorable conditions discharge.

2.  The applicant states he voluntarily entered the military in order to better himself.  It was his intent to apply for special forces because it was considered as the elite and the best.  During basic training he experienced life changing events to include the death of his 12-year old brother.  When he arrived at Fort Benning, GA, he became ill and was hospitalized.  He believes he became rebellious and difficult after his brother's death.  He described incidents in which he retaliated and talked back to his drill instructor, captain, psychologist, and a sergeant at the 40th Casualty Company.  He contends that he was mistreated and should not have been discharged.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 5 March 1971.  He completed basic combat training at Fort Knox, KY, and basic airborne training at Fort Benning, GA.  He was then assigned to the 40th Company, The School Brigade, U.S. Army Infantry School, Fort Benning, GA.

3.  On 22 June 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 16 June 1971 to 21 June 1971.

4.  In November 1972, the applicant was found guilty of first degree burglary and sentenced to confinement at the Indiana Reformatory, Pendleton, IN, for 1 to 10 years.

5.  On 6 November 1972, the unit commander notified the applicant of his recommendation for discharge under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) by reason of conviction by a civil court.  He was advised of his rights.

6.  The applicant's election of rights is not available.

7.  On 2 January 1973, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-206, section VI, by reason of civil confinement with issuance of an Undesirable Discharge Certificate.

8.  Accordingly, the applicant was discharged from active duty on 11 January 1973.  He completed 4 months and 3 days of creditable active service with approximately 554 days of lost time due to AWOL and civil confinement.

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

10.  Army Regulation 635-206, in effect at that 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).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them 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.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-200, 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's statements regarding his conduct during his tenure on active duty are noted.  He contends that he was mistreated and should not have been discharged.  However, there is insufficient evidence to substantiate his claim.

2.  The applicant was found guilty by a civil court in November 1972 of first degree burglary and was sentenced to 1 to 10 years of confinement.

3.  The applicant's service record shows he had received one Article 15 and was confined by civil authorities.  As a result, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general under honorable discharge or a fully honorable discharge.

4.  It appears the approving authority determined that the applicant's overall military service warranted an undesirable discharge.

5.  There is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.



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)                                         AR20090016720



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ABCMR Record of Proceedings (cont)                                         AR20090016720



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