BOARD DATE: 8 April 2010
DOCKET NUMBER: AR20090016794
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 be upgraded to an honorable discharge. He also requests a personal appearance before the Board.
2. The applicant states that he was charged with manslaughter in civilian court. He served 8 years in a Florida State Prison for that offense.
3. The applicant does not provide any additional documents.
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 applicants 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 applicants 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 24 August 1971, was awarded the military occupational specialty of light weapons infantryman, and he was promoted to pay grade E-3.
3. He immediately reenlisted on 5 May 1972.
4. In the processing of the applicant's security clearance, the Federal Bureau of Investigation provided information that the applicant was convicted in 1963 for breaking and entering a coin box; for accosting a child for immoral purposes and probation violation in 1965; and for five other cases of probation violation and escaping Federal custody in 1966 and 1967.
5. On 7 June 1973, the applicant was charged with 1st degree murder.
6. On 19 October 1973, the applicant's commander notified him of the intent to recommend him for discharge for fraudulent entry due to his failure to report his prior civil convictions. The applicant waived all of his rights.
7. On 23 October 1973, the applicant's commander recommended he be discharged for fraudulent entry. This recommendation was approved by the appropriate authority.
8. Accordingly, on 23 November 1973 the applicant was discharged under other than honorable conditions and issued an Undesirable Discharge Certificate.
9. Army Regulation 635-200 (Enlisted Separations), then in effect, provided for the discharge of personnel who fraudulently entered the service. Fraudulent entry was defined as the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all conditions that would have been disqualifying without a waiver. The separation authority was authorized to direct separation with one of several characterizations of service, based on the nature of the concealed disqualification and the Soldier's overall service record.
10. 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 members 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.
11. Army Regulation 15-185 (ABCMR), paragraph 211, provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record is sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interests of equity and justice in this case.
2. The evidence of record conclusively shows the civil convictions which were concealed by the applicant at the time of his enlistment and that his rights were protected throughout his discharge process.
3. The sheer number of concealed offenses and the seriousness of those offenses certainly show that an undesirable discharge was warranted in the applicant's case.
4. Since the applicant has not provided any evidence or argument which would warrant upgrading a properly issued discharge, there is no basis for granting his 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.
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