BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110004132


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states his undesirable discharge is causing a hardship for him and his family.  He would like it upgraded to qualify for Department of Veterans Affairs medical benefits and other programs.

3.  The applicant does 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 31 July 1972.  After completion of training he was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).  The highest rank/pay grade he attained while serving on active duty was private/E-2.

3.  The applicant's record shows he was convicted of robbery.  His record does not contain all the pertinent information surrounding his sentencing; however, his DA Form 20 (Enlisted Qualification Record) shows he was confined for the period 10 April 1973 to 29 April 1974.

4.  The applicant's complete discharge packet is not available for review.  His records show he was notified of the commander's intent to initiate discharge action based on his misconduct – civil conviction.

5.  On 2 February 1974, the applicant consulted with counsel and requested a personal appearance before a board of officers.  He was advised of the basis for the contemplated separation action, the possible effects of an undesirable discharge, and the rights available to him.

6.  On 2 February 1974, the applicant signed a statement indicating he understood the issuance of an undesirable discharge would render him ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

7.  On 27-28 March 1974, a board of officers met to determine the applicant's suitability for continued service.  The recommendation and findings of the board are not available; however, based on the separation authority's concurrence, it is presumed the board recommended his discharge.

8.  On 19 April 1974, the separation authority directed the applicant's discharge for misconduct under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct).

9.  On 29 April 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged for misconduct.  He completed 8 months of creditable active service during this period with 385 days of lost time.

10.  On 27 October 1977, the Army Discharge Review Board denied the applicant's request 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 misconduct.  Paragraph 24 provided 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 1 year under the cited codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will be retained in service as a general rule.  If the offense is indicative of an established pattern of frequent difficulty with civil authorities, his or her military record is not exemplary, and retention was neither practicable nor feasible, a recommendation for separation could be submitted through the major command headquarters to The Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

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

13.  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 to have his discharge upgraded to an honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was convicted by a civilian court for robbery.  As required by applicable regulations at the time, his chain of command initiated separation action against him for misconduct by reason of a civil conviction under the provisions of Army Regulation 635-206 and notified him of this action.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  His service was marred by misconduct as evidenced by his serious civilian charge.  His actions at the time clearly brought discredit upon himself and the Army.  Based on his record of misconduct, his service was unsatisfactory.  Therefore, he is not entitled to 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 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)                                         AR20110003817



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ABCMR Record of Proceedings (cont)                                         AR20110004132



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