IN THE CASE OF:	   

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110012436


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* the type of discharge issued was based upon evidence the discharge board could not reasonably prove beyond a reasonable doubt to have occurred at the time of his enlistment on 6 November 1978
* his discharge should be corrected and upgraded to better serve the Uniform Code of Military Justice (UCMJ)
* the Fort Ord (CA) Discharge Board, convened in 1981, stated he fraudulently entered the U.S. Army by not disclosing his prior civil convictions, which his record of enlistment proves to be false – the Army had granted a waiver and cleared his prior convictions prior to his enlistment
* the Fort Ord Discharge Board further found that he was absent without leave (AWOL) from 11 December 1979 to 15 July 1980
* records show that on 23 December 1979, during the supposed AWOL period, he was at the Fort Benning, GA, Personnel Control Facility (PCF)
* he was paroled back to the Army's custody on 16 February 1980, less than 53 days after being listed as AWOL
* there is not one instance in American military history where men or women with prior civil convictions were denied entry to serve our nation
* the Fort Ord Discharge Board clearly intended to deny him service-connected disability for a documented heart attack he sustained while engaging in physical training at Fort Ord , CA on 3 January 1981

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* a 4-page signed summary of discussion points titled "Key Notes for Veteran Regional Hearing, Wednesday, January 26th 2011"

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.  On 3 January 1975, under an alias in the Circuit Court of Lane County in the State of Oregon, the applicant pled guilty to the charge of burglary in the 2nd degree, and was sentenced to imprisonment for a term not to exceed 5 years.

3.  On 2 November 1976, under several aliases, the Circuit Court of Lane County in the State of Oregon found the applicant guilty on the charge of burglary in the
1st degree and possession of a stolen motor vehicle.  He was sentenced to imprisonment for a term not to exceed 5 years.
 
4.  The applicant's DD Form 4 shows he enlisted in the Regular Army on
6 November 1979 for a period of 4 years in the rank/grade of private (PV1)/E-1.  His record does not contain any documentation that shows his prior civil convictions were waived prior to his enlistment.  In item 36 (Involvement with Police or Judicial Authorities) of page 5 of his DD Form 1966 (Record of Military Processing – Armed Forces of the United States), the applicant affixed his initials 

in the "No" block of sub-items "a" through "e."  Sub-item "f" states to explain "yes" answers given in "a" through "e."  It further states to include all incidents with law enforcement authorities even if the citation or charge was dropped or dismissed or the enlistee was found not guilty or was told by recruiting personnel or anyone else that the incident was not important enough to list.  The applicant entered "None" for sub-item "f."

5.  On 29 November 1979, he was notified of the initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – fraudulent entry, by reason of failure to list civil convictions.

6.  On 30 November 1979, by memorandum to the Commander, U.S. Army Infantry Center, Fort Benning, the applicant's immediate commander recommended his separation under the provisions of Army Regulation 635-200, chapter 14. 

7.  On 5 December 1979, the applicant acknowledged receipt of the proposed separation action, consulted with legal counsel, and was advised of the basis for the contemplated separation and his rights under Article 31 of the UCMJ.  He stated there was recruiter connivance involved with his enlistment.

8.  On 11 December 1979, by memorandum to the Commander, U.S. Army Infantry Center, Fort Benning, the applicant's immediate commander again recommended his separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct – fraudulent entry.  On this same day, the applicant again acknowledged receipt, consulted with counsel, and was advised of the basis for the contemplated separation action and the rights available to him.  He elected not to submit statements in his own behalf.  He further indicated his desire not to be retained in the military.

9.  On 11 December 1979, at 2000 hours, he was reported by his unit as AWOL. His record indicates he was dropped from the rolls of the Army on 9 January 1980.

10.  On 8 April 1980, in the Circuit Court of Multnomah County in the State of Oregon, the applicant pled guilty to the charge of forgery in the 1st degree.  He was sentenced to imprisonment for a term not to exceed 5 years.

11.  On 16 July 1980, he was reported by his unit as confined by civil authorities and returned to the Army's rolls.

12.  On 17 September 1980, by memorandum to the applicant at the Oregon State Penitentiary, the Fort Ord PCF commander notified the applicant of his intent to separate him under the provisions of Army Regulation 635-200,
chapter 14, for misconduct – civil conviction.

13.  On 23 September 1980, the applicant acknowledged receipt, consulted with counsel, and was advised of the basis for the contemplated separation action and the rights available to him.  He elected representation by military counsel and consideration of his case before a board of officers.  He declined to submit statements in his own behalf.  He further indicated his understanding that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  

14.  On 6 November 1980, his immediate commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – civil conviction.

15.  On 13 January 1981, the applicant consulted with counsel and waived personal appearance before and consideration of his case by a board of officers.

16.  On 3 February 1981, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant receive an under other than honorable conditions discharge.

17.  On 20 February 1981, the applicant was discharged accordingly.  His DD Form 214 confirms he was discharged by reason of misconduct – civil conviction.  Due to the amount of time spent in an AWOL and confinement status, he was only credited with completing 2 months and 24 days of net active service during this period of enlistment.

18.  His record does not contain any documentation that shows he suffered a heart attack or had any other medical issue during his period of service.

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

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

21.  Army Regulation 635-200, 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 Soldier'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.

22.  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 contends he was discharged for failing to disclose his prior civil convictions at the time of his enlistment.  He further contends his prior civil convictions were appropriately waived prior to his enlistment; however, the evidence of record does not support this contention.

2.  The applicant's request for the upgrade of his discharge was carefully considered; however, there is insufficient evidence to support this request.  The evidence of record shows he pled guilty to the charge of forgery in the 1st degree and was sentenced to imprisonment for a term not to exceed 5 years.  Accordingly, his discharge was based on his misconduct; specifically, his civil conviction incurred while in an AWOL status.

3.  His administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and was advised of the basis for the separation action.

4.  Based on his record of indiscipline, including his AWOL and civil confinement, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and his punishment was not excessive.  Therefore, he is not entitled to 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20110012436



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