IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100029918 


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, in effect, that his undesirable discharge be upgraded.

2.  The applicant states he was unjustly discharged.  The civil court charged him with a felony when it should have been a misdemeanor.  It is his understanding that in those days $100.00 or more was a felony.  The check he cashed was for $75.00, which made it a misdemeanor.  Thus, he was unjustly discharged. 

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 22 May 1968 and 9 October 1970
* Department of Veterans Affairs (VA) discharge summary
* Information regarding Agent Orange Claimants

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 records show he enlisted in the Regular Army (RA) on 17 April 1967 and held military occupational specialty 13A (Field Artillery Basic).  He served in Germany from 13 October 1967 to 7 June 1968.  While in Germany, he was honorably discharged on 22 May 1968 for the purpose of immediate reenlistment in the RA.

3.  He executed a 3-year reenlistment on 23 May 1968 and he also served in Vietnam from 19 September to 9 November 1968.  He was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. He also attained the rank/grade of specialist four/E-4.

4.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows the applicant was reported in an absent without leave (AWOL) or dropped from the Army rolls (DFR) status as follows:

* 16 August 1968 - 6 September 1968		AWOL
* 30 May 1969 - 16 June 1969				AWOL
* 3 August 1969 - 27 September 1969		AWOL
* 28 September 1969 - 22 March 1969		AWOL
* 26 November 1969 - 2 March 1970		AWOL
* 8 March 1970 - 21 March 1970			AWOL
* 26 May 1970 - 26 May 1970				AWOL
* 27 May 1970 - 2 June 1970				DFR
* 7 June 1970 - 25 June 1970				AWOL
* 26 June 1970 - 21 July 1970				AWOL

5.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his records contain the following documents:

	a.  DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 4 March 1970, which shows he was reported in an absent without leave (AWOL) status from 26 November 1969 to 3 March 1970 and he was pending trial; 

	b.  Special Orders Number 282, issued by the U.S. Army Personnel Center, Fort Lewis, WA, on 9 October 1970 ordering his discharge from the Army effective 9 October 1970 under the provisions of Army Regulation 635-206 

(Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) by reason of conviction by civil court with an under other than honorable conditions discharge; and 

	c.  A duly-constituted DD Form 214 that shows he was discharged for unfitness under the provisions of Army Regulation 635-206 for civil conviction with an Undesirable Discharge Certificate.  This form shows he had completed a total of 2 years, 7 months, and 15 days of creditable active military service and he had 297 days of lost time.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

8.  Army Regulation 635-200 (Personnel Separations) provides the policies and procedures 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.

9.  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 complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows he was discharged on 9 October 1970 by reason of civil conviction with an undesirable discharge.  

2.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and there is no indication of procedural errors that would tend to jeopardize his rights.  Additionally, it must also be presumed that the character of the discharge is commensurate with the applicant's overall record of military service.

3.  While the applicant's serious offense occurred within the civilian community, regardless whether his offense was a felony or a misdemeanor, his discharge processing was based on the fact that he was convicted by civil court.  Either way, his conviction clearly brought discredit upon the applicant and the Army.  Additionally, his overall military service was marred with various types of misconduct that included NJP and an extensive history of AWOL, in addition to his civil conviction.

4.  Based on the available records, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge to either an honorable or 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)                                         AR20100029918



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ABCMR Record of Proceedings (cont)                                         AR20100029918



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