IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010  

		DOCKET NUMBER:  AR20100000584 


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 an upgrade of his undesirable discharge to an honorable or a general discharge.

2.  The applicant states his discharge should be upgraded.

3.  The applicant provides a letter, dated 18 December 2009, from the National Personnel Records Center (NPRC).

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 28 June 1972 and held military occupational specialty 11B (Light Weapons Infantryman).  He was honorably discharged on 19 December 1974 and he subsequently executed a 5-year reenlistment in the RA on 20 December 1974.  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4.

3.  The applicant's records show he was awarded the National Defense Service Medal, Parachutist Badge, Expert Marksmanship Qualification Badge with Machinegun Bar (M-60), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  His records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 14 November 1972, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture and restriction and extra duty.

	b.  On 27 February 1973, for being absent without leave (AWOL) from on or about 20 February 1973 to on or about 21 February 1973.  His punishment consisted of a suspended reduction and restriction and extra duty.

5.  On 17 April 1973, he pled guilty at a summary court-martial to one specification of wrongfully communicating with an acting noncommissioned officer.  The court sentenced him to a forfeiture of pay and hard labor without confinement.  His sentence was approved on 24 April 1973.

6.  His records reveal acceptance of more NJP as follows:

	a.  On 20 November 1973, for disobeying a lawful order.  His punishment consisted of a suspended reduction (later vacated on 26 December 1973), a forfeiture of pay, and extra duty.

   b.  On 7 March 1974, for being AWOL on or about 25 February 1974.  His punishment consisted of a forfeiture of pay and restriction and extra duty.

	c.  On 13 March 1974, for failing to go at the time prescribed to his appointed place of duty on three different occasions.  His punishment consisted of a forfeiture of pay and time at the correctional custody facility.

7.  On 15 April 1975, he pled guilty at and was convicted by a U.S. District Court for the civilian charge of transporting a stolen motor vehicle.  The court sentenced him to probation for 2 years.

8.  On 11 September 1975, he again accepted NJP for disobeying a lawful order. His punishment consisted of a suspended reduction and suspended restriction and extra duty.

9.  On 28 July 1976, he was confined at a county jail after having been convicted by a District Court for two counts of theft and sentenced to 3 years confinement.  

10.  The facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, his service record contains the following documents:

	a.  Orders 116-5, issued by Headquarters, 24th Infantry Division, Fort Stewart, GA, on 15 December 1976, discharging him from the Army under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)), effective 16 December 1976, with an Undesirable Discharge Certificate.

	b.  A properly-constituted DD Form 214 (Report of Separation from Active Duty) that shows the applicant was discharged on 16 December 1976 under the provisions of Army Regulation 635-206, paragraph 33, due to conviction by a civil court and he was issued an Undesirable Discharge Certificate.  This form also shows he completed 4 years and 26 days of creditable active service and he had 142 days of time lost.

11.  On 16 November 1978, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command 

headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 sets forth the basic policy 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.

14.  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 contends that his undesirable discharge should be upgraded to an honorable or a general discharge.

2.  The facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a properly-constituted
DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-206, paragraph 33, by reason of a civil conviction.

3.  He was convicted by a civilian court for larceny and he was sentenced to 3 years of confinement.  It appears that, as required by applicable regulation at the time, his chain of command initiated separation action against him and that he was presumably notified.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  His actions at the time clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by his multiple NJPs, a summary court-martial, and a prior civilian conviction.  Based on his record of misconduct his service was unsatisfactory.  Therefore, there is insufficient evidence to support an upgrade of his discharge.

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)                                         AR20100000584



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ABCMR Record of Proceedings (cont)                                         AR20100000584



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