IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100030087 


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.

2.  The applicant states that due to the stress of the military he began to drink heavily leading him to the decisions he made.  He is now homeless and in need of Department of Veterans Affairs (VA) services.  He served his country and without this upgrade he is unable to obtain his VA benefits.

3.  The applicant provides no additional documentation.

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 on 4 October 1971.  He was subsequently ordered to Fort Polk, Louisiana, for enrollment in basic combat training.

3.  On 29 November 1971, the applicant was arrested by the Calcasieu Parish Sheriff's Department on the charge of simple robbery.

4.  On 26 January 1972, the applicant was found guilty by a civilian court and sentenced to serve 18 months in the Louisiana State Penitentiary.  The sentence was suspended and the applicant was placed on probation for a period of 
2 years.  He was ordered to make full restitution and was released to the 
U.S. Army.

5.  On 11 February 1972, the applicant’s commander notified him that he was being recommended for separation from the U.S. Army because of his civilian conviction.

6.  The applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf and to waive all of his rights.

7.  On 5 April 1972, the commander recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-206, due to conviction by a civilian court.  The commander recommended that he be issued a general discharge.

8.  The appropriate authority approved the recommendation for discharge and directed that he be issued an Undesirable Discharge Certificate.

9.  He was discharged accordingly, on 19 April 1972.  He had completed a total of 6 months and 16 days of creditable active service.

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

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for civilian conviction.  That regulation provided for the elimination of enlisted personnel when action taken against them was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) was confinement in excess of 1 year.


12.  Under the UCMJ, the maximum punishment allowed for simple robbery was a dishonorable discharge and confinement for 10 years.

13.  Army Regulation 635-200 (Enlisted Personnel Separations):

	a.  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.

	b.  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 that his undesirable discharge should be upgraded because he could not handle the stress of the military and began to drink causing him to make bad decisions.

2.  The available evidence clearly shows the applicant committed a simple robbery less than two months after he enlisted for which he was found guilty and sentenced by a civilian court.  In turn, the U.S. Army separated him for this criminal act.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The available evidence does not indicate the applicant had an alcohol-related problem; however, the use of alcohol would not excuse the applicant's criminal act.  The applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

6.  The applicant's desire to obtain VA benefits is not justification to upgrade his discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100030087



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ABCMR Record of Proceedings (cont)                                         AR20100030087



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