BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100009011 


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 he completed basic combat and advanced individual training as well as 12 months of service in Vietnam despite his lost time.  He neither refused service of his country nor ducked the draft.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 7 January 1970.

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 10 April 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  His records also show he served in Vietnam from on or about 13 September 1968 to on or about 21 September 1969.  He was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), Expert Marksmanship Qualification Badge with Machinegun Bar (M-60), National Defense Service Medal, Vietnam Service Medal with 4 bronze service stars, Combat Infantryman Badge, Air Medal, and the Republic of Vietnam Campaign Medal with Device (1960).

4.  On 10 October 1969, he was convicted at a special court-martial of two specifications of being absent without leave (AWOL), one specification of disobeying a lawful order, two specifications of violating a lawful general regulation, and one specification of resisting lawful apprehension.  The court sentenced him to a forfeiture of $90.00 pay and a reduction to private (PV2)/E-2. The convening authority approved his sentence on 11 October 1969.

5.  On 1 May 1970, he was again convicted at a special court-martial of one specification of being AWOL.  The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $50.00 pay per month for 6 months.  The convening authority approved his sentence on 12 June 1970 but suspended the confinement at hard labor until 31 August 1970.

6.  On 14 October 1970, he appeared before the Circuit Court of Cook County, IL, for the civil charges of armed robbery.  He was convicted and sentenced to 3 years probation with the condition that the first year be served at the Illinois State Farm, Vandalia, IL.  

7.  As soon as the applicant was confined, his immediate commander notified him by registered mail 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) by reason of a civil conviction.

8.  The applicant subsequently acknowledged receipt of the notification of the proposed action to discharge him by reason of conviction by civil authorities.  He acknowledged he understood his rights under the provisions of Army Regulation 635-206, the type of discharge he could be issued, and its effect on further 

enlistment or reenlistment.  He also acknowledged he could be issued an Undesirable Discharge Certificate.  He further waived consultation with military counsel, appointment of military counsel to represent him in his absence, and to present his case before a board of officer.  He also elected not to submit a statement in his own behalf.

9.  On 19 October 1970, his immediate commander recommended his discharge under the provisions of Army Regulation 635-206 by reason of misconduct-conviction by civil court, with an Undesirable Discharge Certificate.  The immediate commander remarked the applicant's relationship to authority was evidently based on hostility and aggression.

10.  On 21 October 1970, his senior commander recommended approval of the proposed discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 18 December 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206 by reason of misconduct - conviction by civil court, and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 7 January 1971.

12.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-206 by reason of misconduct - conviction by civil court with an under other than honorable conditions character of service and issuance of an Undesirable Discharge Certificate.  This form further confirms he completed a total of 1 year, 5 months, and 20 days of total active service and he had 210 days of lost time prior to the expiration of term of service (ETS) and 255 days of lost time on or subsequent to his normal ETS.

13.  On 2 March 1973 and 19 January 1981, the Army Discharge Review Board denied the applicant’s petitions for an upgrade of his discharge.

14.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to civil conviction.  Paragraph 37 of the regulation provided, in pertinent part, the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the U.S. or its territorial possessions.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority 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. 

16.  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 undesirable discharge should be upgraded to an honorable or a general discharge.

2.  The applicant's service in Vietnam and his multiple awards and decorations are noted.  However, they are not sufficiently mitigating in granting him the requested relief.

3.  The evidence of record shows he was convicted by a civil court for armed robbery, an offense of a serious nature, and he was sentenced to serve 3 years probation with 1 year in civil confinement.  Accordingly, his chain of command initiated separation action against him as required by the regulation at the time.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Based on his overall record of indiscipline, including his two court-martial convictions and his civil conviction, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20100009011



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)