BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110012137 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he was told his discharge would be upgraded after 6 months.

3.  The applicant provides a DD Form 149 (Application for Correction of Military Record) and DD Form 293 (Application for Review of Discharge) in support of his request.

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 10 October 1967 for a period of 3 years.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  On 2 December 1968, the applicant was convicted by a civil court of bank robbery and five counts of robbery in Washington, D.C.  He was paroled to the military on 27 May 1970.  He was again arrested on 14 January 1971 for parole violation.  He was scheduled to serve a six year sentence.  

4.  On 17 June 1970, the applicant was convicted by a Summary Court-Martial for being absent without leave (AWOL) during the period 30 April 1968 through 
2 June 1970.

5.  On 20 April 1971, 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.

6.  The applicant waived his rights to consult with legal counsel.  He was advised of the basis for contemplated separation action, the possible effects of discharge, and the rights available to him.

7.  On 12 June 1971, 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 22 June 1971, the applicant was discharged accordingly.  The DD Form 214 Worksheet (Report of Separation from Active Duty) he was issued confirms he was separated for misconduct-conviction by civil court.  He completed a total of 6 months and 7 days of creditable active military service with a total of 1146 days of lost time due to AWOL and civil confinement.

8.  On 8 February 1977, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge.  On 10 March 1977, the ADRB reviewed and denied his appeal.  The ADRB determined his discharge was proper and equitable and that the discharge was properly characterized as an under other than honorable conditions discharge.

9.  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.

10.  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.

11.  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.  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.

3.  The applicant’s record shows he was convicted by a civil court of bank robbery and by a Summary Court-Martial for being AWOL during the period 
30 April 1968 through 2 June 1970. 








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 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)                                         AR20110012137



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ABCMR Record of Proceedings (cont)                                         AR20110012137



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