IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100010994 


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 reconsideration of a previous request that his discharge be upgraded.  He also requests that the narrative reason for his separation be changed, correction of his records to show he was inducted into the service, and to show the correct amount of time served on active duty.

2.  The applicant states the narrative reason and characterization of his service as shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) are not supported by actual facts and military files.

3.  The applicant provides a DD Form 214, DA Form 20 (Enlisted Qualification Record), miscellaneous military personnel and medical records, and a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999934425, on 
7 September 2000.

2.  He states that the narrative reason for his separation and characterization of his service as shown on his DD Form 214 are not supported by actual facts and military files.  These arguments were not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such, warrants consideration by the Board.
3.  His records show that he was inducted into the Army on 25 March 1970 for two years.  He completed his initial entry training and was awarded military occupational specialty 76A (Supply Clerk).  He arrived in the Republic of Vietnam (RVN) on 24 July 1970.

4.  While in the RVN, he accepted the following nonjudicial punishments:

	a.  on 9 September 1970 for failing to go at the time prescribed to his appointed place of duty;

	b.  on 23 September 1970 for failing to go at the time prescribed to his appointed place of duty and for being absent from his place of duty for four days;

	c.  on 29 January 1971 for being absent without proper authority for nine days;

	d.  on 4 May 1971 for failing to go at the time prescribed to his appointed place of duty on four occasions;

	e.  on 29 July 1971 for failing to go at the time prescribed to his appointed place of duty on three occasions and for failing to obey a lawful general regulation; and

	f.  on 16 August 1971 for failing to obey a lawful general regulation on two occasions, for resisting being lawful apprehension by a military policeman, and for breaking restriction.

5.  He was found guilty by a special court martial on 14 May 1971 of eight specifications of failing to go at the time prescribed to his appointed place of duty.

6.  He departed the RVN on 27 August 1971 and was reassigned to Fort Belvoir, Virginia.

7.  On 22 November 1971, he was found guilty by a special court-martial of being absent from his unit without authority (AWOL) during the period 30 August - 12 October 1971.

8.  Item 38 (Record of Assignments) of his DA Form 20 shows he was AWOL from 10 December 1971 to 31 January 1972 and from 23 February 1972 to 
13 July 1973.  A DA Form 4187 (Personnel Action), dated 1 July 1976, shows his duty status changed to confined by civil authorities effective 14 July 1973.  The DA Form 4187 also indicates that at the time of its preparation, he was confined at an Indiana State Prison serving a 2 to 5 year sentence.
9.  A DA Form 4187, dated 22 November 1977, indicates he was released from civilian confinement on 25 August 1977 but failed to return to military control.

10.  A DA Form 4187, dated 2 May 1978, shows he was again confined by civil authorities effective 16 December 1977 for auto theft and parole violation.

11.  On a letter dated 18 December 1978, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations) for misconduct because of a civil conviction.  He was advised of his right to a military counsel or civilian counsel at his own expense, to submit statements in his own behalf, or to waive those rights in writing or by declining to reply to the letter of notification.  He acknowledged that the letter was read to him and that he completely understood his rights.  He also signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, for conviction by civil authorities.  He requested consideration of his case by aboard of officers.

12.  The administrative separation board proceedings and their recommendation are not available for review; however, in an undated endorsement, the separation authority approved the board's findings and directed his separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate. The undated endorsement indicates the administrative separation board had convened on 24 July 1979.

13.  On 24 March 1980, he was discharged with his service characterized as under other than honorable conditions.  His DD Form 214 shows he completed 
1 year, 7 months, and 7 days of creditable active duty service and accrued over 
8 years of lost time.  Item 28 (Narrative Reason for Separation) shows the entry "Misconduct - conviction by civil court."

14.  He provided a self-authored statement in which he essentially narrates his entire military career and the events that led to his incarceration and subsequent discharge from the military.

15.  On 17 June 1981, the Army Discharge Review Board concluded his discharge was proper and equitable and denied his request for a discharge upgrade.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific 

categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

17.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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's contention that the narrative reason for his separation and character of his service are not supported by facts and military files have been carefully considered.

2.  The evidence of record confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, as a result of his conviction by civil authorities; therefore, the narrative reason for separation shown on his DD Form 214 is correct.  The evidence also confirms that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His record of indiscipline includes nonjudicial punishment on six occasions, two court-martial convictions, and civilian convictions for theft issues and parole violation.  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 either a general or an honorable discharge.  

4.  He is also requesting to change the characterization to induction status and correction of the time served in the military.  His military records clearly show he was inducted into the Army.  Furthermore, he did not specify what errors he believes exist in the record concerning the amount of time he served on active duty.

5.  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 to amend the decision of the ABCMR set forth in Docket Number AR1999034425, dated 7 September 2000.




      _______ _   __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)                                         AR20100010994



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010994



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1