IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110000571 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, that he was an honor student while in basic training and advanced individual training.  It was not until his family experienced financial problems at home did he suffer a mental break down which caused him to act in behaviors unlike himself. 

3.  The applicant provides:

* 3 letters of support
* Kansas State High School Diploma, dated 1 September 1976
* Suburban Truck Driver Training School certificate, dated 4 April 2008
* Birthday Notice [unknown source]
* Character Reference Phone Numbers
* Work Experience, 1980 - 2004

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 13 March 1974 for a period of 
3 years.  He completed training as a field wireman.

3.  He accepted nonjuduicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

* 23 July 1975, failure to go to appointed place of duty
* 5 August 1975, for dereliction of duty
* 8 December 1975, failure to go to appointed place of duty
* 18 December 1975, operating an unregistered vehicle
* 22 January 1976, disobeying a lawful order from a superior commissioned officer 

4.  On 23 March 1976, the applicant was arrested by civil authorities for two counts of burglary.  He pled guilty and was found guilty of both offenses.  He was sentenced to not less than 1 year, and no more than 10 years.

5.  In a letter dated 6 May 1976, the applicant's commander informed him that he was being considered for elimination from the Army under the provisions of Army Regulation 635-206 (Personnel Separations) due to a civil conviction with an undesirable discharge.  He was advised of his right to request that military counsel be appointed to represent him before a board of officers and to submit a statement in his own behalf.  

6.  The applicant acknowledged receipt of the notification of his discharge on 23 July 1976.  In his individual waiver statement he elected the following:
 
* consideration of his case by a board of officers
* a personal appearance before a board of officers
* to submit statements on his own behalf
* representation by military counsel 
* to retain a civilian counsel at his own expense
* appeal his conviction for burglary

7.  He further acknowledged that he understood as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  

8.  On 15 September 1976, an investigating board met for the purpose of determining whether he should be discharged due to misconduct. The applicant was not present but was represented by military counsel.  The board recommended the applicant be discharged with an undesirable discharge for misconduct for reason of civil conviction.

9.  On 18 October 1976, the appropriate authority approved the recommendation for separation under the provisions of Army Regulation 635-206 due to a civil conviction and directed the issuance of an Undesirable Discharge Certificate.  The applicant was discharged on 8 November 1976, under the provisions of Army Regulation 635-206, due to conviction by civil authorities.

10.  The applicant submitted letters of support which contend he is sincere, hardworking, dedicated and a Christian man.  He has been employed as a general contractor since1980 and has performed work for several members of his church.  In addition, he and his wife serve as foster care parents. 

11.  On 27 February 1979, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

12.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct resulting in conviction by civil court.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  

	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.  There is no evidence in the available records to substantiate that his family's financial problems led to his misconduct.  

2.  He accepted NJP on five separate occasions for acts of misconduct.  Further, his record shows he was arrested and convicted by civil authorities of burglary and was subsequently discharged as a result of his civil conviction.  

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge and the reasons therefore were appropriate considering all of the facts of the case.

4.  His post service achievements are noted; however, in view of the foregoing, there is no basis to grant the requested relief.

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)                                         AR20110000571





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ABCMR Record of Proceedings (cont)                                         AR20110000571



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