IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110016363


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 he believes the character of his discharge resulted from being young and naïve.  He states he picked the wrong people to hang around with and he would not have acted the way he did if this were not the case.  He concludes by stating he is a changed man, and he would greatly appreciate the Board's consideration of his request.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* pages 1 and 3 of his DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ))
* his Judgment of Guilt on Plea of Guilty from the 147th Judicial District Court of Travis County, Texas, dated 9 December 1976
* 4 third-party letters of character reference/support

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 23 September 1975.  He completed training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  Upon the completion of his training, he was assigned to Headquarters and Headquarters Company, 57th Signal Battalion, Fort Hood, TX.

3.  His record shows he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following 2 occasions:

* on 5 April 1976, for failure to go, at the prescribed time, to his appointed place of duty on 22 March 1976, and for absenting himself from his unit from on or about 16 March 1976 to on or about 18 March 1976
* on 28 July 1976, for dereliction of duty on 28 June 1976

4.  On 7 September 1976, he was arrested and confined by civil authorities and charged with robbery committed on 6 September 1976.

5.  On 2 December 1976, he pled guilty to robbery committed on 6 September 1976.  On 9 December 1976, pursuant to his guilty plea, the 147th Judicial District Court of Travis County, Texas, sentenced him to confinement in the Texas Department of Corrections for a period of 3 years.

6.  On 22 March 1977, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for civil conviction.  

7.  The applicant acknowledged receipt of the separation memorandum.  He was advised by counsel of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers, and to be represented by his appointed counsel.  He stated his intent not to appeal his civil conviction.  In his statement in his own behalf, he stated that he felt bad because he didn't rob anyone and the people who could help him were unavailable to do so.  He further stated his appreciation and thankfulness for the type of discharge he would eventually receive.

8.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He further understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  His immediate commander initiated separation action against him by reason of civil conviction.  His chain of command recommended approval with the issuance of an under other than honorable conditions discharge.

10.  On 27 April 1977, a board of officers was convened at Fort Hood, TX to consider the applicant's retention on active duty.  The board recommended his discharge because of civil conviction with the issuance of an under other than honorable conditions discharge.

11.  On 3 June 1977, 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 that he receive an under than honorable conditions discharge.  

12.  On 27 June 1977, the applicant was discharged.  The DD Form 214 he was issued at the time confirms he completed a total of 11 months and 14 days of creditable active service, and he had 294 days of lost time.

13.  On 5 April 1978, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  He provides 4 third-party letters of character reference/support from friends and fellow church members.  Each letter attests to his strength of character, professionalism in the performance of his duties, and general willingness to help others in their daily struggles; however, none of the letters addresses his performance of duty while in an active duty status or the circumstances that led to his discharge.


15.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, 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 one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the chain of command.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations) provides the basic policies and procedures 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.

17.  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 was convicted by a civilian court of robbery and he was sentenced to confinement in prison.  As required by applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  

2.  His actions at the time clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by his previous incidents involving NJP.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20110024663



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ABCMR Record of Proceedings (cont)                                         AR20110016363



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