IN THE CASE OF:	  

		BOARD DATE:	    22 May 2012

		DOCKET NUMBER:  AR20110021815 


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 his undesirable discharge be upgraded.

2.  The applicant states he is ashamed to have received such a discharge and would like to say how regrettably sorry he is for the behavior he displayed during his enlistment.  He was young and foolish and didn't think he had to listen to anyone.  He has lived a very productive life since his military service and worked extremely hard.  He has tried to be an example to the young men and women in his community by talking with them and encouraging them to do the right thing.  He would like his discharge to be upgraded to at least a general discharge.

3.  The applicant provides:

* three personal references
* Standard Form 180 (Request Pertaining to Military Records)
* memorandum, dated 3 October 2011, from Miami Department of Veterans Affairs (VA) Healthcare System
* VA Form 10-10EZ (Application for Health Benefits)
* VA Form 119 (Report of Contact)
* VA Form 10-0483 (Acknowledgement of the Notice of Privacy Practices)

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.  He enlisted in the Regular Army, at the age of 18, on 8 August 1966 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 36C (Wireman).

3.  He accepted nonjudicial punishment (NJP) on:

* 9 November 1966 for being absent from his appointed place of duty
* 12 September 1967 for failure to obey a lawful regulation
* 27 March 1968 for being absent from bed check 
* 23 April 1968 for failure to go at the time prescribed to his appointed place of duty
* 21 May 1968 for being absent from bed check
* 7 November 1968 for being absent without leave (AWOL) from on or about 2 November to on or about 7 November 1968

4.  On 27 March 1969, he was tried before a special court-martial.  

	a.  He pled guilty and was found guilty of:

* being AWOL from on or about 11 December 1968 to on or about 
	8 January 1969
* being AWOL from on or about 19 January 1969 to on or about 
	11 March 1969

	b.  His sentence consisted of 4 months confinement and forfeiture of $97 per month for 4 months.

	c.  On 9 April 1969, the convening authority suspended the 4 months confinement for a period of 4 months.

5.  On 5 May 1969, he went AWOL.  He was apprehended by civil authorities on 15 September 1972 while in the process of robbing, with a pistol, the Kentucky Fried Chicken in Atlanta, GA.

6.  On 29 November 1972, he pled guilty to two counts of attempted robbery.  He was sentenced to be confined at labor for the full term of an indeterminate number of years to be computed according to law under the Youthful Offender Act.

7.  The equivalent crime and maximum punishment under The Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1969 (Revised edition) would be: Article 122, robbery - dishonorable discharge, reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, and 10 years confinement.

8.  On 29 November 1972, he pled guilty to possession of a pistol (a misdemeanor).  He was sentenced to be confined under the jurisdiction of the State Board of Corrections in the State Penitentiary, in a public works camp, or such other institution as the Director of Corrections may direct for a period of 
12 months.

9.  On 18 December 1972, his commander notified him he was being processed for discharge under the provisions of Army Regulation 635-206 (Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion).

10.  The commander advised him of his right to:

* have his case considered by a board officers
* appear in person before a board officers
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge
* request his case be presented before a board of officers.

11.  On 22 December 1972, he waived all of his rights and stated he did not intend to appeal his civil conviction.

12.  On 12 January 1973, his commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-206.  He had been convicted on two counts of armed robbery and 1 count of carrying an unregistered pistol.  He received an indeterminate sentence under the Youthful Offenders Act for the robbery and 12 months confinement for carrying an unregistered pistol.

13.  On 1 February 1973, the appropriate authority approved the recommendation for separation due to civil court conviction and directed that the applicant be issued an Undesirable Discharge Certificate.

14.  On 13 February 1973, he was discharged under the provisions of Army Regulation 635-206 due to a civil conviction.  He was issued an Undesirable Discharge Certificate.  He completed 2 years, 5 months, and 8 days of net active service that was characterized as under other than honorable conditions.  He had 204 days time lost prior his normal ETS (expiration of term of enlistment) and 1,286 days time lost subsequent to his normal ETS.

15.  On 23 January 1978, the Army Discharge Review Board (ADRB) reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

16.  He submitted a letter, dated 9 August 2011 from a former classmate.  His former classmate stated they had finished high school together and she had always known him to be a respectful, honest, and dutiful person.

17.  He submitted two letters from two of his neighbors.  They attest to him being respectful, always willing to help, and a good neighbor.  The neighbors have known him for over 30 years.

18.  Army Regulation 635-206, then in effect, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent entry into the service, conviction by civil court, and absence without leave or desertion.

	a.  Section VI (Conviction by Civil Court) stated that an individual will be considered for discharge when he had been initially convicted by civil authorities, or action had been taken against him which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year. 

	b.  The discharge or recommendation for discharge would not be accomplished or submitted until the individual had indicated in writing that he did not intend to appeal the conviction, or until the time in which an appeal may be made had expired, whichever was earlier, or if the appeal had been made, until final action had been taken thereon.

	c.  An individual discharged for conviction by a civil court normally would be furnished an Undesirable Discharge Certificate, however, an honorable or General Discharge Certificate could be furnished if the individual being discharged had been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

19.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  His age at the time of his enlistment was considered.  However, he was no younger than other Soldiers of the same age who successfully completed their service obligations and received honorable discharges.  At the time he was convicted in civil court he was 24 years of age.  Therefore, the applicant’s age is not sufficient to warrant upgrading a properly-issued discharge.

2.  He was notified of his rights concerning his discharge.  He waived all of his rights and he did not submit a statement in his own behalf.

3.  All requirements of law and regulations in effect at the time were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  He accepted NJP on five occasions and had been convicted by a special court-martial of being AWOL.  He had been AWOL for over 3 years when he was apprehended by civil authorities while attempting to commit an armed robbery.    Therefore, his service is determined to be unsatisfactory.  

5.  The applicant's post-service achievements and conduct were reviewed.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge.
6.  In view of the above, there is not a sufficient basis on which to base an upgrade of his 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)                                         AR20110021815



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ABCMR Record of Proceedings (cont)                                         AR20110021815



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