IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100012623 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states he was compassionately reassigned to Union Lake, MI, due to the severity of his mother's illness (terminal cancer) and he applied for a hardship discharge.  During this period, he was charged with a felony by civilian authorities and he was offered an under other than honorable conditions discharge in lieu of a trial by court-martial.  Under the advice of his counsel, he accepted the under other than honorable conditions discharge with the understanding that his discharge would be upgraded to a general discharge after the expiration of his 6-year obligation.

3.  The applicant did not provide any additional documentary evidence.

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 enlisted in the Regular Army for a period of 3 years on 19 February 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).  The highest rank/grade he attained during this period of military service was specialist four/E-4.

3.  The applicant's records show he served in Germany from 23 July 1969 to 14 July 1970 and in Vietnam from 12 September 1970 to 9 October 1970.  He was awarded the National Defense Service Medal, Army of Occupation Medal (Berlin), and Vietnam Service Medal.

4.  On 26 February 1971, he was arrested by the Union Lake, MI, police for the civil offenses of "minor in possession" and "breaking and entering" and on 5 April 1971 subsequent to a guilty plea, he was sentenced to probation for 1 year from 5 April 1971 with the conditions that he not leave the State without court permission, report monthly to his probation officer, not engage in antisocial misconduct, and not be on a public street after midnight.

5.  On 15 April 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 10 to 13 April 1971.

6.  On 7 May 1971, the applicant's 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 his civil conviction.

7.  On 7 May 1971, 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 initially requested consideration of his case by a board of officers and appearance before a board of officers, but he elected not to submit a statement on his own behalf.

8.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He also understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.

9.  On 14 May 1971, his immediate commander initiated separation action against him under Army Regulation 635-206 for his civil conviction.  The immediate commander recommended an Undesirable Discharge Certificate and indicated the applicant's conduct had been unsatisfactory and his efficiency had been fair.

10.  On 6 July 1971, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 25 June 1971 to 1 July 1971.

11.  On 9 July 1971, he again 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 waived consideration of his case by a board of officers, waived appearance before a board of officers, and elected not to submit a statement on his own behalf.

12.  On 23 July 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for misconduct by reason of civil conviction and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 27 July 1971.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed a total of 2 years, 5 months, and 8 days of creditable active military service and had 4 days of lost time.

13.  On 25 November 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 provided that members who had been convicted by domestic and foreign courts of offenses which did not involve moral turpitude or which did not provide punishment by confinement in excess of 1 year under the cited codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, would, as a general rule, be retained in service.  If the offense was indicative of an established pattern of frequent difficulty with the civil authorities, his military record was not exemplary, and retention was neither practicable nor feasible, a recommendation for separation 

could be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33, provided that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Personnel Separations) provides 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 evidence of record shows the applicant was convicted by a civilian court of "minor in possession" and "breaking and entering" and he was sentenced to a probated sentence.  The evidence of record further shows his chain of command initiated separation action against him and that he was accordingly notified.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

2.  While his offense occurred within the civilian community and his sentence was probated, it clearly brought discredit upon him and the Army.  His overall military service was marred with various types of misconduct that included two instances of NJP for AWOL in addition to his civilian conviction.

3.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if it is determined that the characterization of service or the reason for discharge or both were improper or inequitable.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100012623



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ABCMR Record of Proceedings (cont)                                         AR20100012623



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