IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007171 


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 under other than honorable conditions discharge.

2.  The applicant states he would like his discharge upgraded so he can attend school.  He states there was a death in his family in 1977 and he went home on emergency leave to help as he was the oldest of ten brothers and sisters.  He states he did not do drugs, but was just bad.  At the time, he states he was under personal stress.  He concludes by stating he was discharged while he was in prison.

3.  The applicant does not provide any supporting documents with 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 11 November 1975 for a period of 3 years.  He completed his initial entry training and he was awarded military occupational specialty 11C (Infantry Fire Crewman).

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on
18 September 1976 for being absent without leave (AWOL) from 9 September 1976 to 15 September 1976.

4.  The applicant was reported AWOL on 31 December 1976.  He returned to military control on 4 July 1977 when he was apprehended and confined by the civilian authorities.

5.  On 8 August 1977, the applicant pled guilty and he was convicted in civil court for the offense of second-degree robbery while armed with a deadly weapon, a pistol.  He was sentenced to confinement for 2 years with credit for time served.

6.  On 29 August 1977, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) for his conviction by a civil court.

7.  The commander advised the applicant of his right to have his case considered by a board of officers, to submit statements in his own behalf, and to representation by counsel.  Additionally, the applicant was advised he could waive any of these rights in writing and that he could withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge, and request his case be presented before a board of officers.

8.  The applicant submitted a counseling statement acknowledging that he had been advised by a correctional officer with the Fresno County jail of the basis for the contemplated action against him under the provisions of Army Regulation 635-206 due to conviction by a civil court.  The applicant waived consideration by a board of officers and a personal appearance.  He did not provide statements in his own behalf and he waived representation by an appointed counsel.


9.  On 17 October 1977, the applicant's commander recommended him for discharge due to conviction by a civil court and issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant's intermediate commanders endorsed this request.

10.  On 26 October 1977, the commanding general approved the recommendation and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.

11.  On 3 November 1977, the applicant was discharged under the provisions of Army Regulation 635-206, section VI, for misconduct, convicted or adjudged by a civil court during his current term of active military service.  He completed 1 year, 1 months, and 5 days net active service that was characterized as under other than honorable conditions.  He had 318 days of time lost under the provisions of Title 10, U.S Code, section 972.

12.  There is to record to show the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge within its 15-year statute of limitations.

13.  References:

     a.  Army Regulation 635-206, section VI (Conviction by Civil Court), then in effect, states, in pertinent part, that an individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ is death or confinement in excess of 1 year.  Soldiers discharged for conviction by civil court normally will be furnished an Under Other Than Honorable Discharge Certificate except that an honorable or general discharge may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

     b.  The equivalent crime and maximum punishment for Article 122 under the table of maximum punishments of the Manual for Courts-Martial, United States, 1969 (Revised edition) was a dishonorable discharge, reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and 10 years confinement.

     c.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.  While it is commendable that the applicant would like to attend school, it does not support changing a properly-ordered discharge.  In addition, he has not submitted any evidence to support his contention that the death of a family member contributed to his stress.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time to include counseling by a civil authority.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  A review of the applicant's record of service, which included nonjudicial punishment and 318 days of time lost, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  It is devoid of any redeeming service.  Therefore, the applicant is not entitled to a discharge under honorable conditions or an honorable discharge.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that 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)                                         AR20100007171



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)