IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20110000589 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states he was unjustly found guilty and the judgment is keeping him from receiving any entitled military benefits.

3.  The applicant did not provide any additional evidence.

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 23 January 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 3 December 1975, the applicant was convicted by a civil court of aggravated robbery and sentenced to 5-25 years in confinement.

4.  The applicant was notified of initiation of separation action under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for conviction by a civil court.

5.  The applicant consulted with legal counsel and was advised of the basis for contemplated separation action, the possible effects of discharge, and the rights available to him.

6.  The applicant provided a one-page self-authored letter to the commander which essentially requests a board of officers to review his discharge.

7.  On 17 March 1976, the board convened and all documentary evidence was presented.  In view of the findings, the board recommended that the applicant be discharged from the service for misconduct by reason of conviction by a civil court.

8.  On 25 March 1976, the separation authority approved the applicant's discharge under Army Regulation 635-206 and directed that he be issued an under other than honorable conditions discharge.  On 6 April 1976, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was separated for misconduct-conviction by civil court.  He completed a total of 1 year, 7 months, and 6 days of creditable active military service with a total of 586 days of lost time.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in 


excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant’s record shows was charged and convicted by a civil court for aggravated robbery and sentenced to 5-25 years in confinement.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory. Therefore, he is not entitled 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 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)                                         AR20110000589



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ABCMR Record of Proceedings (cont)                                         AR20110000589



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