IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021681 


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 his undesirable discharge (UD) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states the following:

	a.  his UD is inequitable because it is based on a civil conviction that was pending prior to his commitment to enlist in the U.S. Army and because of his youth at the time,

	b.  he is requesting his UD be upgraded to a GD because his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) includes the entry "Benefits of Honorable Discharge," and

	c.  he went to the Department of Veterans Affairs hospital thinking he would receive medical care based on the "Benefits of Honorable Discharge" entry on his DD Form 214, but he was not.

3.  The applicant provides a self-authored statement in support of his request.

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 he enlisted in the Regular Army on 4 February 1970.  While attending his initial training, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 March 1970 for disobeying a lawful order given by his superior noncommissioned officer and for failing to report to his appointed place of duty.

3.  The applicant's DA Form 20 (Enlisted Personnel Qualification Record) confirms in item 18 (Appointments and Reductions) that private/E-1 was the highest rank/grade he attained while serving on active duty.

4.  Item 44 (Time Lost) of his DA Form 20 shows he accrued a total of 372 days of lost time due to absence without leave (AWOL) and confinement during the following periods:

* 27 March 1970-9 April 1970 (14 days of AWOL)
* 14 April 1970-10 September 1970 (150 days of AWOL)
* 14 September 1970-16 November 1970 (64 days of confinement)
* 17 November 1970-9 April 1971 (144 days of confinement)

5.  On 23 October 1970, contrary to his plea, a special court-martial found the applicant guilty of violating two specifications of Article 86 of the UCMJ for being AWOL from on or about 27 March 1970 to 9 April 1970 and from on or about 14 April 1970 to 11 September 1970.  The resultant sentence approved by the court-martial convening authority was a forfeiture of $50.00 pay per month for 4 months and confinement at hard labor for 4 months.

6.  On an unknown date, the applicant was released to civil authorities of Pulaski County, State of Arkansas, based on a warrant charging him with forgery, uttering a forged instrument, and being personally present at the time of the commission of the alleged crime.  On 20 January 1971, the applicant pled guilty to the charges and was sentenced to 3 years of imprisonment on forgery and 3 years of imprisonment on uttering.

7.  Separation action was initiated on the applicant based on his civil conviction.  On 4 March 1971, the applicant completed an acknowledgement of his rights in connection with his separation processing under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct).  He elected to waive his right to military counsel and his right to consideration of his case by an administrative separation board, and he chose not to submit a statement in his own behalf.  He also stated that he had no intention of appealing his civil conviction by the Circuit Court of Little Rock, Pulaski County, Arkansas, wherein he was sentenced to serve 3 years for forgery and 3 years for uttering.

8.  On 2 April 1971, the separation authority approved the applicant's separation and directed that he receive a UD.  On 9 April 1971, the applicant was discharged accordingly.

9.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-206, section VI, by reason of misconduct for conviction by civilian court during his current term of active military service.  It also shows he completed a total of 3 months of creditable active military service and had accrued 372 days of lost time due to AWOL and confinement.

10.  Item 25 (Education and Training Completed) of the applicant's DD Form 214 includes the following entries:

* Benefits of Honorable Discharge
* UCMJ
* Army Training Program 21-114
* Code of Conduct

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

12.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge (HD) or a GD if it were warranted based on the member's record of service.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The version of the regulation in effect at the time provided instructions for completing item 25 and stated that for enlisted personnel, installation training courses, military correspondence courses, and off-duty courses completed successfully during the period covered by the DD Form 214 would be entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because his conviction by a civilian court was pending prior to his commitment to enlist in the Army was carefully considered.  However, this factor does not provide a sufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  In addition, the applicant's discharge accurately reflects his overall undistinguished record of service, which did not support the issuance of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

3.  Further, all entries contained in item 25 of his DD Form 214 refer to education and training he received during military service.  Accordingly, the entry "Benefits of Honorable Discharge" confirms the applicant's receipt of this training and has no bearing on the characterization of the discharge he received.

4.  In order to justify correction of a military record, the applicant must show 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:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090021681



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ABCMR Record of Proceedings (cont)                                         AR20090021681



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