IN THE CASE OF:
BOARD DATE: 31 March 2011
DOCKET NUMBER: AR20100022971
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 honorable.
2. The applicant states, in effect, he would like his discharge upgraded because he is a Vietnam era veteran with no combat experience, and it would be good as a "Ho-Chunk Nation" veteran to be able to honor all veterans who are not with us now.
3. The applicant provides no additional 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted into the Army of the United States on 22 October 1970.
3. On 12 January 1971, he accepted nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty.
4. A State of Kentucky court document shows he was convicted on 8 March 1971 of taking, driving, and operating a motor vehicle without the owner's consent. He was sentenced to confinement for 1 year.
5. In a letter dated 12 March 1971, the applicant's commander informed him that he was being considered for elimination from the Army under the provisions of Army Regulation 635-206 (Personnel Separations) due to a civil conviction with an undesirable discharge. He was advised of his right to request that military counsel be appointed to represent him before a board of officers and to submit a statement in his own behalf. He waived representation by counsel and elected not to submit a statement in his own behalf.
6. On 20 April 1971, his commander initiated separation action. On 5 May 1971, the appropriate authority approved the recommendation for separation under the provisions of Army Regulation 635-206 due to a civil conviction and directed the issuance of an Undesirable Discharge Certificate.
7. On 11 May 1971, he was discharged accordingly. His DD Form 214 shows he completed 2 months and 27 days of creditable active service and he had accrued 113 days of lost time.
8. There is no evidence he applied to the Army Discharge Review Board for an upgraded of his discharge.
9. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for conviction by civil court. That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities.
10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.
11. 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 requests that his undesirable discharge be upgraded to honorable.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge and the reasons therefore were appropriate considering all of the facts of the case.
3. His record of indiscipline includes nonjudicial punishment, conviction by a civil court, and 113 days of lost time. Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to either an honorable or a general discharge.
4. In view of the foregoing, the applicant's request should be denied.
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) AR20100022971
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ABCMR Record of Proceedings (cont) AR20100022971
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