IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008083 


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, upgrade of his undesirable discharge (UD).

2.  The applicant states the following:

* he was afraid to go to Vietnam and kill someone or be killed for something he really did not understand
* he departed absent without leave (AWOL), got in trouble, and went to prison
* he did not realize that since he was a Muslim, he could have filed for conscientious objector on the basis of his religion in the Nation of Islam
* he has paid his debt, it has been long enough, and he does not want to die with that in his family

3.  The applicant provides no documents in support of 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’s record shows he was inducted into the Army of the United States and entered active duty on 15 May 1968.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 33 (Appointments and Reductions) that he was advanced to the rank/grade of private (PV2)/E-2 on 15 September 1968 and this was the highest rank he held while serving on active duty.  It also shows that he was reduced to private
(PV1)/ E-1 on 28 October 1968.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [Expiration Term of Service]) of the applicant's DA Form 20 shows he accrued 541 days of time lost due to AWOL and confinement.

5.  The applicant’s DA Form 20B (Insert to DA Form 20 - Record of Court-Martial Conviction) shows a special court-martial (SPCM) convicted him of being AWOL from on or about 16 September to 8 October 1968.  He was sentenced accordingly.

6.  On 24 November 1969, pursuant to the applicant’s guilty plea and while he was in an AWOL status, the State of Michigan convicted the applicant of robbery (unarmed) and sentenced him to 1 1/2 to 15 years of confinement at hard labor in the State Prison of Southern Michigan.

7.  On 16 December 1969, the applicant was notified that action was being taken to discharge him from the Army based on his civil court conviction.  He was advised that an individual discharged for conviction by a civil court normally will be furnished an Undesirable Discharge Certificate.  He was advised of his rights accordingly.

8.  On 13 January 1970, having been advised of the basis for the contemplated separation, its effects, and the rights available to him, he made the following election of his rights:

* waived consideration of his case by a board of officers
* 
waived representation by counsel
* not to make a statement in his own behalf 
* not to appeal his civilian conviction

9.  On 6 February 1970, the unit commander recommended discharge of the applicant under the provisions of Army Regulation 635-206 by reason of civil conviction.

10.  On 27 March 1970, the separation authority approved the recommendation to discharge the applicant and directed issuance of a DD Form 258A (Undesirable Discharge Certificate).

11.  On 28 December 1977, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's case, denied his request for an upgrade of his UD.

12.  Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), 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 III of that regulation 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 separated under this provision of the regulation.

13.  Army Regulation 635-200 governs the policies and procedures 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.  The applicant’s contends his UD should be upgraded.

2.  The evidence of record confirms the applicant pled guilty, he was found guilty, and he was sentenced to 1 1/2 to 15 years in civilian confinement for the charge of unarmed robbery.

3.  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.  Further, the applicant's discharge accurately reflects his overall record of service for the charges he was convicted of and does not support an upgrade of his 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)                                         AR20100008083



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)