BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100025369 


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 that he was discharged due to a crime he committed and goes on to state that he had an addiction to alcohol and multiple problems.

3.  The applicant provides a letter from his sister and copies of documents from his records.

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 Portland, Oregon on 16 November 1972 for a period of 3 years, military occupational specialty 05F (Radio Teletype Operator), and assignment to Korea. 

3.  He completed basic training at Fort Ord, California and advanced individual training at Fort Gordon, Georgia before being transferred to Korea on 17 May 1973.  He was advanced to the pay grade of E-4 on 19 March 1974.

4.  He completed his tour in Korea on 18 May 1974 and was transferred to Fort Lewis, Washington.  On 29 August 1974 he was honorably discharged for the purpose of immediate reenlistment.

5.  On 30 August 1974, he reenlisted for a period of 5 years, MOS 05F, and assignment to Fort Bragg, North Carolina.  He was transferred to Fort Bragg on 13 December 1974.

6.  On 1 January 1975, while on pass, the applicant was arrested by civil authorities in Murfreesboro, Tennessee and charged with two counts of third degree burglary and three counts of an attempt to commit a felony.  He was tried and convicted by civil authorities on 18 April 1975 and sentenced to 9 years in the Rutherford County Jail in Murfreesboro, Tennessee. 

7.  On 28 April 1975, the applicant’s battalion commander advised the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-206 due to a civil conviction.

8.  The applicant was advised of his rights and indicated that he did not intend to appeal his civil conviction.  He also requested representation by counsel and a board of officers to hear his case.  Military counsel was appointed to represent him.

9.  On 3 September 1975, a board of officers convened and the applicant was represented by counsel.  The applicant also submitted a statement through his counsel requesting that his record of military service be taken into account and that he be issued a General Discharge Certificate.

10.  His detachment sergeant testified before the Board and indicated that in the month the applicant had been with the unit he had done an outstanding job and that he would not mind having the applicant work for him again.



11.  After considering all of the evidence, the board of officers determined that the applicant was undesirable for further retention in the military.

12.  On 16 September 1975, the appropriate authority (a lieutenant general) approved the findings of the board of officers and directed that the applicant be furnished an Undesirable Discharge Certificate.

13.  Accordingly, he was discharged under other than honorable conditions on 7 October 1975 under the provisions of Army Regulation 635-206 due to conviction by civil authorities with an Undesirable Discharge Certificate.  He had completed 2 years, 1 month, and 12 days of total active service and he had 
280 days of lost time due to confinement by civil authorities.

14.  On 29 December 1979, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he had not been properly represented by counsel and he was not properly advised of his rights.  He also contended that his military records should not be affected by events involving civil authorities and that his military record should be considered in determining the character of his service.  The ADRB found that his discharge was both proper and equitable under the circumstances and voted to deny his request on 28 May 1981.

15.  A review of his official records failed to show any indication of any involvement with alcohol or drugs during his service.

16.  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.

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

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 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 the seriousness of his offenses, his short 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 or an honorable 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)                                         AR20100025369



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ABCMR Record of Proceedings (cont)                                         AR20100025369



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