IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110002283 


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 (UOTHC) discharge to a general discharge (GD).

2.  The applicant states he never had a hearing and the discharge was issued while he was in prison.

3.  The applicant provides:

* a Congressional Inquiry Packet
* his DD Form 214 (Report of Separation from Active Duty) issued by the U.S. Marine Corps (USMC) for the period ending 26 March 1974
* his DD Form 214 issued by the U.S. Army for the period ending
23 September 1977

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 served in the USMC for 2 years from 27 March 1973 through
26 March 1974.  He enlisted in the Regular Army on 20 June 1974.  His record documents no acts of valor or significant achievement.

3.  The applicant’s disciplinary history in the Army includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 November 1975 for being absent without leave (AWOL) from 16 August through 12 September 1975.  It also includes his accrual of 295 days of time lost during two separate periods of AWOL between
16 August 1975 and 22 July 1976, and three periods of imprisonment between 
22 September 1975 and 9 December 1976.  

4.  On 9 December 1976, an assistant adjutant, Headquarters, U.S. Army Personnel Control Facility (PCF), Fort Ord, CA issued a letter, Subject: Transfer of (Applicant name and social security number), in which he indicated the applicant was apprehended by the Federal Bureau of Investigation (FBI) for
18 counts of robbery and related felonies on 23 July 1976.  He also confirmed the applicant was released by the court on 13 August 1976 and extradited to Maryland on Federal and State warrants.  He further confirmed the applicant’s location at that time was the Prince George's County Detention Center, Upper Marlboro, MD.  

5.  On 14 March 1977, the Circuit Court for Prince George’s County, Maryland found the applicant guilty of one count of robbery with a deadly weapon.  The applicant was sentenced to 10 years imprisonment of which all but 4 years were suspended.  He was concurrently placed on probation for a period of 3 years upon special conditions that any time served may be served in the County Detention Center.

6.  The record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing.  The record does contain correspondence between the applicant and a Member of Congress regarding his request to be discharged from the Army, dated in April and May 1977.  This correspondence confirms the applicant sought the assistance of a Member of Congress in expediting his discharge from the Army.  


7.  The record also contains an FD AG Form 498 (Administrative Instructions for Elimination Actions) that confirms the separation authority had approved the applicant’s discharge under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), paragraph 33 and directed the applicant receive a UOTHC discharge.

8.  The record also contains a letter to the applicant from the Chief, Enlisted Branch, U.S. Army Training Center, Fort Dix, Fort Dix, NJ, dated 23 September 1977, that advised the applicant that the reason for his discharge was Misconduct (Conviction by a Civil Court).

9.  The record also contains a properly-constituted DD Form 214 for the period ending 23 September 1977, which identified the authority for his discharge as Army Regulation 635-206, paragraph 33.  It also contains a separation program designator (SPD) of "JKB," which refers to misconduct (civil conviction).  This document also shows the applicant completed 4 years, 5 months, and 12 days of total active service with 295 days of time lost due to AWOL and imprisonment.

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

11.  Army Regulation 635-206, 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 VI 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 UOTHC was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge (HD) or a GD if it were warranted based on the member's record of service.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.

	a.  Paragraph 3-7a provides that an HD 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 GD 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his discharge be upgraded because he never received a hearing has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-206, paragraph 33, by reason of a civil conviction.  In connection with such a discharge, the applicant would have had to have been convicted by a civil court and he would have elected not to appeal the conviction.  He also would have been offered the opportunity to have his case considered by a board of officers and to be represented by counsel.  His record also includes letters from the applicant requesting discharge as a result of his civil conviction and a Congressional Inquiry Packet that confirms he sought the assistance of a Member of Congress in expediting his discharge.

4.  The applicant’s record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history.  As a result, his UOTHC discharge accurately reflects the overall quality of his service.

5.  Absent any evidence of record or independent evidence provided by the applicant to the contrary, it is presumed that the applicant's discharge processing was accomplished in accordance with the applicable regulation; that all requirements of law and regulation were met; and that the rights of the applicant were fully protected throughout the separation process.  Therefore, in the absence of any evidence of error or injustice related to his discharge processing, there is an insufficient evidentiary basis to support an upgrade of his 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)                                         AR20110002283



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ABCMR Record of Proceedings (cont)                                         AR20110002283



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