IN THE CASE OF:	  

		BOARD DATE:	    29 March 2011

		DOCKET NUMBER:  AR20100024044 


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 a general discharge.  

2.  The applicant states that in August 1971 he was home on authorized leave when a personal problem arose and he made a fateful decision not to return to his unit so that he could deal with the problem.  Shortly thereafter he was arrested and convicted of forgery and received a sentence of 7 to 10 years.  He further states that he was unable to return to his unit and he received an undesirable discharge.  He also states that he was not released from prison until 29 December 2000 and he was unaware that he could apply for an upgrade of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army in Raleigh, North Carolina on 13 November 1968 for a period of 3 years.  He was transferred to Fort Bragg, North Carolina to undergo basic training.  During the period of 6 January to 
24 January 1969, nonjudicial punishment was imposed against the applicant on three separate occasions for being absent from his unit, failing to secure his weapon, and being disrespectful in language towards a superior noncommissioned officer (NCO). 

3.  He was then transferred to Fort Polk, Louisiana to undergo his advanced individual training (AIT) as an infantryman.  He completed his training and received orders transferring him to Vietnam.  However, he went absent without leave (AWOL) instead of reporting as ordered and remained absent in a desertion status until he was returned to military control at Fort Bragg, North Carolina. 

4.  On 3 March 1970 nonjudicial punishment (NJP) was imposed against him for two specifications of disobeying lawful orders from superior noncommissioned officers.

5.  On 10 March 1970, he was convicted by a special court-martial at Fort Bragg, North Carolina of being AWOL from 2 June to 1 August 1969 and 6 October to 4 February 1970.  He was sentenced to hard labor for 4 months and reduction to the pay grade of E-1.

6.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas to serve his confinement and then to Fort Ord, California for retraining in another military occupational specialty.

7.  On 1 September 1970, NJP was imposed against him for assaulting another Soldier.  The applicant completed retraining as a light vehicle driver and was transferred to Fort Knox, Kentucky on 26 October 1970.

8.  On 18 December 1970, NJP was imposed against him for failure to go to his appointed place of duty.

9.  On 16 March 1971, NJP was imposed against him for failure to go to his appointed place of duty.

10.  On 18 May 1971, NJP was imposed against him for two specifications of failure to go to his appointed place of duty.

11.  On 19 June 1971, he went AWOL and remained absent in a desertion status until it was discovered, on 27 June 1975, that he had been convicted by civil authorities on the charge of forgery and sentenced to confinement for not less than 7 years or more than 10 years.  The applicant was confined by the North Carolina Department of Corrections.

12.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina in 1985.  However, his records do contain a duly authenticated DD Form 214 which shows he was discharged on 4 December 1975 under the provisions of Army Regulation 635-206 due to a conviction by civil authorities with an Undesirable Discharge Certificate.  He had served 1 year, 10 months, and 2 days of total active service and he had 720 days of lost time due to being AWOL and in confinement.

13.  There is no evidence in the available records to show that he ever applied to the army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  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.  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's overall record of service has been considered.  However, given his repeated misconduct, his undistinguished record of service and the seriousness of his offenses, his record of service alone is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of 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)                                         AR20100024044



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ABCMR Record of Proceedings (cont)                                         AR20100024044



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