IN THE CASE OF:	 

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110016929 


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, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he believes his record should be corrected because the U.S. District Court set aside his judgment on 8 January 1973, pursuant to Section 501(b) of Title 18, U.S. code.

3.  The applicant provides a copy of an Order of Discharge from Probation, from the U.S. District Court, Eastern District of Virginia-Richmond.

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 17 June 1968.  He completed training as a light vehicle mechanic.

3.  The applicant accepted nonjudicial punishment (NJP) on five separate occasions between 18 July 1969 and 24 September 1970 for the following offenses:

* being absent without leave (AWOL)
* failure to go to his appointed place of duty
* failure to obey a lawful order

4.  On 6 March 1969, the applicant was convicted by a special court-martial of two specifications of being AWOL.

5.  The facts and circumstances surrounding his discharge action are not on file.

6.  The applicant's official military record contains a Report of Psychiatric Evaluation, dated 17 June 1970, in which the Chief, Mental Health Community Services stated the applicant was being evaluated at the request of his chain of command.  He also stated the applicant and some of his civilian buddies were charged with larceny by civil authorities.  The applicant was convicted and sentenced to return to military duty and probation for 5 years.  He was determined to suffer from no mental disorder.  He was mentally responsible, able to distinguish right from wrong, and adhere to the right.  He was also psychiatrically cleared for any action his chain of command deemed appropriate.

7.  On 10 November 1970, the appropriate authority approved the applicant's discharge action and directed the issuance of an Undesirable Discharge Certificate.

8.  On 13 November 1970, the applicant was discharged under the provisions of Army Regulation 635-206, for misconduct – convicted or adjudged a juvenile offender by civil court.  He had completed 1 year, 8 months, and 16 days of total active service and he had approximately 251 days of lost time due to being AWOL and in confinement.  He received an Undesirable Discharge Certificate.

9.  A review of his records does not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.




10.  The applicant submits an Order of Discharge from Probation, from the U.S. District Court, Eastern District of Virginia-Richmond which shows that, on
8 January 1973, he was unconditionally discharged from probation prior to the expiration of the maximum period of probation and the judgment of conviction entered by the court on 16 April 1970, was set aside pursuant to Section 5021(b) of Title 18, U.S. Code.

11.  Army Regulation 635-206 (Personnel Separations), 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.

12.  Army Regulation 635-200 (Personnel Separation) provides:

   a.  paragraph 3-7a states 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; and
   
   b.  paragraph 3-7b states 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 contentions have been noted and his supporting evidence has been considered.
2.  The available evidence shows he was convicted by civil authorities of larceny on 16 April 1970.  He was returned to military duty and placed on probation for 5 years.

3.  The fact that he was unconditionally discharged from probation prior to the expiration of the maximum period of probation and his judgment conviction was set aside is not proof that he was not guilty.

4.  The available records show he was discharged in accordance with the applicable regulation and he has not shown error or injustice in the type of discharge he received.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110016929



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ABCMR Record of Proceedings (cont)                                         AR20110016929



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