IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100029872 


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 a change in his undesirable discharge (UD) to a general, under honorable conditions discharge (GD) or medical discharge.

2.  The applicant states medical personnel at Fort Dix, New Jersey ignored his hospitalization for psychiatric observation and that he was to be detained for being absent without leave (AWOL) and let him leave.

3.  The applicant provides:

* Standard Form (SF) 600 (Chronological Record of Medical Care)
* DA Form 20 (Enlisted Qualification Record) - page 3 only
* 11 February 1971 and 2 February 1972 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 record shows he initially enlisted in the Regular Army (RA) on 5 May 1970 and served until he was honorably discharged for the purpose of immediate reenlistment on 6 February 1972.  The DD Form 214 issued at that time shows he completed 1 year, 9 months, and 2 days of creditable active military service.

3.  On 7 February 1972, the applicant reenlisted in the RA.  He served in military occupational specialty 11B (Light Weapons Infantryman).

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was advanced to the rank/grade of specialist four (SP4/E-4) on 18 September 1971, the highest rank he held while serving on active duty.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [Expiration Term of Service]) shows he accrued time lost due to AWOL and confinement during seven separate period from 14 September 1972 through 
5 March 1974, totaling 384 days.

5.  The applicant's Official Military Personnel File (OMPF) contains a
DA Form 3975 (Military Police Report) prepared on 5 December 1973, which shows:

   a.  the applicant was charged with two counts of fleeing to elude a police officer and of being an accessory after the fact of a felony (burglary);
   
   b.  on 1 November 1973, before a District Court Judge, the applicant plead guilty to the charges against him; and
   
   c.  the applicant was convicted and sentenced to 175 days for each count to be served concurrently in the Cecil County Jail, Elkton, Maryland.
   
6.  On 11 February 1974, the applicant was notified that action was being taken to eliminate him from the Army under the provisions of Army Regulation 635-200 due to his conviction by civil authorities.  An Undesirable Discharge Certificate was recommended.  He was advised of his rights accordingly.

7.  On 13 January 1970, having been advised of the basis for the contemplated separation, its effects, and the rights available to him, he made the following election:

* waived consideration of his case by a board of officers
* waived representation by counsel
* not to make a statement in his own behalf 
* not to appeal his civilian conviction

8.  On 21 February 1974, the unit commander recommended discharge of the applicant under the provisions of Army Regulation 635-206 by reason of civil conviction for two counts of "fleeing to elude a police officer "and "accessory after the fact to the charge of burglary."

9.  The separation authority approved the recommendation to discharge the applicant and directed issuance of a DD Form 258A (Undesirable Discharge Certificate) on 21 February 1974.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

11.  Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separated under this provision of the regulation.

12.  Army Regulation 635-200 governs 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 applicant contends his UD should be upgraded to a GD or changed to a medical discharge.

2.  The evidence of record confirms the applicant pled guilty, he was found guilty, and he was sentenced to 5 years in civilian confinement for two counts of fleeing to elude a police officer and accessory after the fact and burglary.

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service for the charges he was convicted of and does not support an upgrade of his discharge.

4.  Finally, if the applicant had a medical condition warranting consideration of a medical discharge by processing through the Army's Physical Disability Evaluation System, his civil confinement would have prevented such action.

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)                                         AR20100029872





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ABCMR Record of Proceedings (cont)                                         AR20100029872



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