BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110016423 


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 undesirable discharge.

2.  The applicant states his discharge situation must be corrected.  He has lived with this unjust matter for a number of years.  He was convicted by the State of Maryland for armed robbery in 1971 and sentenced to 3 to 12 years in the Maryland correctional system.  He proclaimed his innocence, but his conviction was not overturned.  He was officially in the U.S. Army during the time of his conviction and civil confinement.  Due to his disability (mental illness), he was never able to become the man or Soldier he should have been.

3.  The applicant provides a doctor's statement, a medical form, and an eye examination report.

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's records show he was inducted into the Army of the United States on 3 July 1968.  He was assigned to the 3rd Battalion, 5th Advanced Individual Training Brigade, Fort Polk, LA, on 4 December 1968.

3.  On 4 January 1969, he was reported absent without leave (AWOL) from his unit and on 3 February 1969, he was dropped from the rolls.

4.  On 6 March 1971, he was apprehended by civilian authorities and returned to military control at Fort George G. Meade, MD.

5.  On 9 April 1971, he was given a psychiatric evaluation.  The examining psychiatrist found the applicant had a history of depressive episodes and drug addiction but had no significant psychiatric illness.  He cleared the applicant for all administrative and judicial dispositions as deemed fit by the command.

6.  On 30 April 1971, he was convicted by a general court-martial of being AWOL from 4 January 1969 to 6 March 1971.  He was sentenced to confinement for 8 months, forfeiture of $50.00 per month for 8 months, and a bad conduct discharge.

7.  On 28 July 1971, he was apprehended by civilian authorities for assault and armed robbery and confined to the county jail in Baltimore, MD.

8.  On 7 December 1971, he was convicted by a civil court of robbery with a deadly weapon and sentenced to 12 years of confinement.  He was incarcerated at the Maryland Correctional Training Center, Hagerstown, MD.

9.  Headquarters, Fort George G. Meade, General Court-Martial Order Number 12, dated 18 February 1972, shows only the sentence to a bad conduct discharge and 8 months of confinement was approved.  The execution was suspended for 6 months at which time, unless the suspension was vacated sooner, it would be remitted without further action.

10.  In a memorandum from the U.S. Army Personnel Control Facility, dated 9 June 1972, he was notified he was being recommended for elimination due to his conviction by civil authorities on the charge of assault and armed robbery under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct).  Action was suspended to give him the opportunity to consult with legal counsel and submit statements on his own behalf.

11.  In a memorandum from the U.S. Army Personnel Control Facility, dated 24 January 1973, he was again notified he was being recommended for elimination under the provisions of Army Regulation 635-206 due to his conviction by civil authorities on the charge of assault and armed robbery.  Action was suspended to give him the opportunity to consult with legal counsel and submit statements on his own behalf.

12.  On 27 January 1973, he acknowledged receipt of the notification and indicated he had appealed his conviction and his case was pending appeal.

13.  On 22 June 1973, he submitted a statement to his commander and indicated his appeal had been denied.

14.  On 2 July 1973, his immediate commander submitted a request for authority to discharge the applicant under the provisions of Army Regulation 635-206 based on his conviction by civil authorities of armed robbery, sentence to 12 years of incarceration, and confinement in a state correctional facility.

15.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain Special Orders Number 137, dated 11 July 1973, issued by Headquarters, Fort George G. Meade, wherein he was discharged effective 13 July 1973 under conditions other than honorable by reason of conviction by civil court.  The authority is shown as chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

16.  Special Orders Number 138, dated 12 July 1973, issued by Headquarters, Fort George G. Meade, amended his discharge orders to add:  "Special Instructions (c) Absent in the hands of civil authorities Maryland Correctional Training Center, Hagerstown, MD  21740."

17.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under other than honorable conditions on 13 July 1973 under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed a total of 9 months and 28 days of creditable active service with 1,533 days (or 4 years, 2 months, and 13 days) of lost time due to AWOL and confinement by civilian authorities.

18.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.



19.  The applicant provides:

	a.  a medical form, dated 31 August 2009, wherein a physician in Philadelphia, PA, annotated a block that indicates an individual was temporarily disabled as a result of an injury or acute condition from 31 August to 7 November 2009 (this form does not list the name of the individual) and

	b.  a doctor's statement, dated 27 October 2009, wherein a physician with Thomas Jefferson University, Philadelphia, PA, stated the applicant had attended weekly outpatient psychiatric appointments since August 2009.

20.  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).  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  An undesirable discharge was normally considered appropriate.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

22.  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 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.

23.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a civil court for armed robbery and sentenced to confinement in the Maryland Correctional Training Center.  Accordingly, his immediate commander initiated separation action against him, he was notified of the separation action, and a defense counsel was appointed to represent him.

2.  Although the specific facts surrounding his discharge are not available for review with this case, his records show he was convicted by a general court-martial of being AWOL and sentenced to a bad conduct discharge.  It is unknown why he was subsequently discharged under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate, but discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service.

3.  In the absence of evidence to the contrary, it must be presumed that his separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

4.  In addition, he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the general court-martial conviction he received for being AWOL and his 1,533 days of lost time due to AWOL and confinement.

5.  In view of the foregoing, the type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  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 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)                                         AR20110016423



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ABCMR Record of Proceedings (cont)                                         AR20110016423



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