IN THE CASE OF:	  

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110007910 


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 to a general discharge, under honorable conditions.

2.  The applicant states:

* he served with the Old Guard Regimental Unit at Arlington National Cemetery
* he started drinking and smoking marijuana due to problems within his marriage
* the events that led to his discharge were the end result of loaning a fellow Soldier money who had no intentions of repaying him
* he cooperated with the authorities and performed community service 
* after his discharge, both his mother and his brother died, resulting in his becoming homeless and reusing drugs
* he entered the Salvation Army Rehabilitation program and has been sober for 18 months

3.  The applicant provides:

* a four-page self-authored statement
* two personal references




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 12 June 1974.  

3.  The applicant's record documents no acts of valor or service warranting special recognition.

4.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 24 October 1975, for failing to go at the time prescribed to his appointed place of duty on two separate occasions
* 15 December 1975, for failing to go at the time prescribed to his appointed place of duty 
* 22 March 1976, for failing to go at the time prescribed to his appointed place of duty
* 6 July 1976, for failing to go at the time prescribed to his appointed place of duty 
* 1 October 1976, for failing to go at the time prescribed to his appointed place of duty 

5.  On 9 September 1977, he was found guilty by a civil court of stealing stereo equipment and cash, totaling in value $877.00.  On 14 October 1977, he was sentenced to 5 years confinement, of which 3 years were suspended, and 5 years probation.

6.  On 23 January 1978, the applicant’s unit commander informed him action was being taken to separate him under the provisions of paragraph 38b (3) of Army Regulation 635-206 (Misconduct - Conviction by Civil Court, AWOL, Desertion).  The unit commander also informed the applicant that he could receive an under other than honorable conditions discharge certificate as a result of this action.  The unit commander continued by advising him of his right to be represented by or consult with legal counsel, to present his case before a board of officers, to submit a statement in his own behalf, to waive these rights in writing or that he could decline to reply to the letter of notification within 30 days.

7.  On 15 February 1978, the applicant acknowledged receipt of the unit commander's notification and waived each of his aforementioned rights.  He also acknowledged he understood that if he were issued an undesirable discharge he could expect to encounter substantial prejudice in civilian life.  

8.  He submitted a statement concerning the proposed discharge, wherein he stated he wanted to remain in the service.  He stated he was having financial problems due to non-pay.  He had a wife and three children to support and became desperate.  

9.  On 28 February 1978, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-206 by reason of civil conviction.   

10.  On the same date, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for misconduct by reason of civil conviction and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge.  The applicant was accordingly discharged on 29 August 1978.  The DD Form 214 he was issued at the time confirms he completed a total of 4 years, 2 months, and 18 days of total active service.

11.  On 9 January 1980, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

12.  He submitted two personal references, dated 1 and 3 February 2011, that noted that he had attended classes and chapel at the Salvation Army on a regular basis and remains drug and alcohol free. 

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.  An under other than honorable conditions discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations), 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 contends his under other than honorable conditions discharge should be upgraded to a general discharge, under honorable conditions.

2.  Evidence shows he was discharged under the provisions of Army Regulation
635-206, by reason of a civil conviction.  He was convicted by a civilian court for stealing stereo equipment and cash and sentenced to 5 years confinement, with 3 years suspended, and 5 years probation.  As required by applicable regulation at the time, his chain of command initiated separation action against him 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 actions at the time clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by a history of NJP in addition to his serious civilian charges.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to 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 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)                                         AR20110012131



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ABCMR Record of Proceedings (cont)                                         AR20110007910



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