IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012744 


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 an honorable discharge.

2.  The applicant states after he completed basic combat training he was not issued a two-week pass.  He was placed in a medical hold status due to his foot injury and he was in the process of being separated from the Army.  He felt the Army was unfair because he was not allowed to go on leave.  Subsequently, he went absent without leave (AWOL) to be with his family.  

3.  He states before being drafted he had a prior felony conviction and the Army set him up for failure.  He believes the Army ignored his conviction record in order to get recruits.  If his conviction record had been properly considered it would have revealed that he was not able to conform to military standards.  He would not have been drafted and issued an undesirable discharge.

4.  He provides no additional documentation.

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.  He was inducted into the Army of the United States on 27 March 1969.  Item 13a (Convicted or Adjudicated of Crime or Other Than Minor Traffic Violation) of his DD Form 47 (Record of Induction), date 27 March 1969, shows he was convicted of 2nd degree burglary in April 1963 and received a 6-month sentence. Item 21 (Registrant Has Been Personally Interviewed at Time of: [preinduction - revealed adjudication or conviction]) shows he was granted a waiver for burglary conviction by the proper authority.  He successfully completed basic training but did not complete advanced individual training.  

3.  On 25 September 1969, he was convicted by a summary court-martial of being AWOL from 1 August through 21 September 1969.  His sentence consisted of a forfeiture of $82.00 pay for 1 month, restriction to the company area for 60 days, and reduction to the rank/grade of private/E-1.

4.  On 7 April 1970, he was convicted by a special court-martial of being AWOL from 15 November 1969 through 23 February 1970.  His sentence consisted of confinement at hard labor for 4 months and a forfeiture of $55.00 pay for 4 months.

5.  His court-martial charge sheet is not available and his service personnel records do not contain the facts and circumstances surrounding his separation processing.  However, his DD Form 214 (Armed Forces of the United States Report of transfer or Discharge) shows he was discharged on 26 June 1970 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of trial by court-martial with an undesirable discharge.  He completed 7 months and 11 days of creditable active service with 234 days of lost time due to being AWOL and in confinement.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the individual's admission of guilt.  An undesirable discharge was considered appropriate at the time.

7.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

8.  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 the Army ignored his criminal conviction in order to get recruits and should have looked at his criminal record to determine he was not able to conform to military standards.  However, evidence shows his criminal conviction was considered prior to his induction by an approving authority.  The criminal conviction was waived and he was found qualified for induction.  There is no evidence that he was any different than thousands of other Soldiers who honorably served with prior criminal convictions.

2.  His administrative separation is presumed to have been accomplished in accordance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

4.  His records show that he was convicted by one special court-martial and one summary court-martial and he had two periods of AWOL.  He had completed a total of 7 months and 11 days of creditable active service with 234 days of lost time due to being AWOL and in confinement.  Based on these facts, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable or 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)                                         AR20100012744



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ABCMR Record of Proceedings (cont)                                         AR20100012744



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