IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100007542 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was arrested by civil authorities after another individual fabricated charges he had robbed a grocery store at gunpoint.  He raised the issue with the Army but did not get any assistance.  He was confined and served 28 months in jail.  While in jail, he was approached by Army officials and asked to sign some paperwork which ultimately discharged him.  He is now older, homeless, ill, and in need of assistance.  He would like to be a productive citizen of the society.

3.  The applicant provides the following documents:

* Two letters of appreciation
* A character reference letter
* A Department of Veterans Affairs (VA) Form 21-438 (Statement in Support of Claim)
* A letter from his Member of Congress

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 was inducted into the Army of the United States on 1 March 1968 and held military occupational specialty 44E (Machinist). The highest rank/grade he attained during his military service was private/E-2. His records also show he was awarded the National Defense Service Medal.

3.  On 31 August 1968, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for reckless driving and damaging a military vehicle.

4.  On 5 April 1969, he departed his unit in an absent without leave (AWOL) status and he was subsequently dropped from the Army rolls on 6 May 1969.  

5.  While AWOL, he was arrested by civil authorities and he was subsequently convicted on 27 October 1969 by a District Court for the civilian charges of robbery and sentenced to 2 to 6 years of imprisonment in the Colorado State Penitentiary.

6.  On an unknown date in July 1970, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) for civil conviction.  

7  On 31 July 1970, he acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf. 

8.  He further indicated he understood as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

9.  On 3 September 1970, his immediate commander initiated separation action against him in accordance with Army Regulation 635-206.  

10.  On 8 September 1970, his intermediate commander recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate.

11.  On 18 September 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206 by reason of unfitness due to misconduct and directed the applicant be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade. The applicant was accordingly discharged on 25 September 1970.

12.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged with a character of service of under conditions other than honorable.  This form further confirms he completed 1 year, 1 month, and 4 days of creditable active military service and he had 539 days of lost time.

13.  On 21 September 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  He submitted the following documents:

	a.  A letter, dated 30 July 2008, from the Detroit Veterans Center, Michigan Veterans Foundation wherein an associate executive director describes the applicant's medical and housing conditions and appeals for some sort of assistance to the applicant.  

	b.  A letter, dated 9 July 2008, from the Detroit Veterans Center, Michigan Veterans Foundation wherein a case manager supervisor describes the applicant's participation in basic life skills workshops learning money management skills.

	c.  A letter, dated 8 August 2008, from an individual who describes the applicant as a man of integrity and high moral values.  He recommends his discharge be upgraded.

	d.  A VA Form 21-438, dated 31 March 2009, wherein the applicant states that another Soldier told a lie about a store robbery that ultimately led to his confinement.
	e.  A letter, dated 19 November 2009, from the applicant's Member of Congress wherein he inquires about the status of the applicant's request.

15.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It states members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations) provides the basic policies and procedures 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.

17.  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 his discharge should be upgraded.

2.  The evidence of record shows he was convicted by a civil court for robbery and was sentenced to 2 to 6 years of imprisonment.  The evidence of record further shows his immediate commander initiated separation action against him and he was accordingly notified.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 

3.  In order to justify correction of a military record, he must show or it must otherwise satisfactorily appear that the record is in error or unjust.  He did not submit evidence that would satisfy that requirement. 

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20100007542



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)