IN THE CASE OF:	  

		BOARD DATE:  8 May 2012

		DOCKET NUMBER:  AR20110022448 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states his discharge was unjust because he was a young man with no education and didn't understand the impact the discharge would have on his life.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 22 December 1967 at the age of 17 with parental consent.  He served in military occupational specialty (MOS) 11E (Armor Crewman) and the highest rank/grade he attained while serving on active duty was PV2/E-2.

3.  The available records show the applicant was convicted by a special courtmartial on two occasions for the offenses indicated:

* on 11 May 1968, for being absent without leave (AWOL) during the period 7 February 1968 through 17 April 1968
* on 22 July 1968, for being AWOL during the period 8 June 1968 through 25 June 1968

4.  The applicant's available records contained a copy of his DA Form 20 (Enlisted Qualification Record) which shows in item 44 (Time Lost under Section 972, Title 10, US Code and Subsequent to Normal Date ETS) the following periods of lost time:

* AWOL, 7 February 1968 – 16 April 1968
* Confinement, 17 April 1968 – 22 May 1968
* AWOL, 8 June 1968 – 24 June 1968
* Confinement, 27 June 1968 – 24 October 1968
* AWOL, 11 November 1968 – 2 February 1969
* Civilian Confinement, 4 August 1969 – present [4 April 1972]

5.  On 4 August 1969, the applicant was confined at Geary County Jail, Junction City, Kansas and charged with second degree manslaughter.  On 16 April 1970, the applicant pled guilty and was sentenced to 3 – 5 years of imprisonment by the Geary County District Court.

6.  On 8 November 1971, the applicant submitted a request to be discharged from the Army.

7.  An undated FR Form 54 (Individual's Waiver Statement) shows the applicant acknowledged the contemplated action of separation for conviction by civil court. This form shows the applicant waived his right for consideration of his case by a board of officers, a personal appearance before a board of officers, his right to consult with legal counsel, the type of discharge and its effect on further enlistment or reenlistment, and the possible effects of an undesirable discharge.  The applicant further indicated he did not intent to appeal his civil conviction for manslaughter.  


8.  On 18 February 1972, 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 the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 4 April 1972. 

9.  The DD Form 214 he was issued at the time shows he completed a total of 8 months and 1 day of total active service with 1,302 days of time lost.

10.  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.

11.  Army Regulation 635-206 (Personnel Separations – Misconduct), in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.

13.  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 argues his UOTHC discharge should be upgraded to a GD because he was young.

2.  The applicant's records show he was only 19 years of age at the time of his civilian conviction.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.
3.  The applicant was discharged under the provisions of Army Regulation
635-206, by reason of a civil conviction.  He was convicted by a civilian court for second degree manslaughter and he was sentenced to imprisonment in a civilian prison.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and notified him of this action.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

5.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance in effect at the time and his overall record of undistinguished service was not sufficiently meritorious to support the separation authority issuing a GD at the time of discharge nor does it support an upgrade now.

6.  In view of the foregoing, there is sufficient evidence to grant relief in this case.

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)                                         AR20110022448





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022448



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1