IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100007815 


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 general under honorable conditions.

2.  The applicant states while incarcerated he received certificates for completion of the following courses:  positive mental attitude, reality therapy, life skills, anger management, and college courses in sociology.  He contends that with an adjustment to his discharge, he can move forward in helping other veterans who are in a situation such as his.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of this 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 29 February 1972.  He completed initial entry training and was awarded military occupational specialty 76A (Supplyman).

3.  The applicant accepted nonjudicial punishment on the following occasions:

	a.  on 28 April 1972, for disobeying a lawful order;

	b.  on 20 June 1972, for being absent from his unit without authority;

	c.  on 27 June 1972, for striking another Soldier with his fist; and

	d.  on 14 July 1972, for being absent from his unit without authority.

4.  A DA Form 19-32 (Military Police Report) indicates the applicant was apprehended by civilian authorities on a fugitive warrant for armed robbery and placed in confinement.  He was subsequently sentenced to serve 10 years 
(5 years were to be served in confinement and 5 years were to be served in a probation status).  Based on the above, his commander initiated separation proceedings under the provisions of Army Regulation 635-206 due to conviction by civil authorities.

5.  The applicant was advised by correspondence of the basis for the contemplated separation action and of the impact of the discharge action.  The applicant signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation
635-206 (Personnel Separations) for conviction by civil authorities with an undesirable discharge.  He requested consideration of his case by an administrative separation board.

6.  On 7 June 1974, an administrative separation board convened and recommended the applicant be separated from the service and furnished an Undesirable Discharge Certificate.

7.  On 22 July 1974, the appropriate authority approved the recommendations of the board and directed that the applicant be separated with an Undesirable Discharge Certificate.

8.  On 26 July 1974, he was discharged under the provisions of Army Regulation 635-206 due to conviction by civil authorities with an undesirable discharge.

9.  The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 16 June 1976.

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, from an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 requests that his discharge be upgraded so he can move forward in helping other veterans.  His positive intentions and desire to better himself while incarcerated were considered; however, these factors do not overcome the serious nature of the offense which led to his discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

3.  The applicant's record of indiscipline includes nonjudicial punishment on four occasions and a civilian conviction for armed robbery.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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.


ABCMR Record of Proceedings (cont)                                         AR20100007815



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)