IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110023328 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states that he was not given an opportunity to represent himself during the discharge process.

3.  The applicant provides no additional evidence.

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 for a period of 3 years on 14 July 1970.  He was awarded military occupational specialty 13A (Field Artillery Basic).

3.  On 24 September 1971, the applicant pled guilty to and was found guilty of a felony.  He was sentenced to be punished by imprisonment in a Kansas State penal institution for a period of not less than 1 year and not more than 20 years.

4.  The applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, Desertion) based on his conviction by a civil court.  The applicant was advised of his rights and the separation procedures involved and that he could be issued a discharge under conditions other than honorable.

5.  On 4 November 1971, the applicant acknowledged receipt of the notification of separation action for misconduct (civil conviction) and he:

	a.  waived consideration of his case by a board of officers;

	b.  waived personal appearance before a board of officers,

	c.  elected not to submit statements in his own behalf,

	d.  waived representation by military counsel,

	e.  indicated he had not retained civilian counsel to present his case before a board of officers,

	f.  acknowledged he was advised he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him, and

	g.  certified that he did not intend to appeal his civil conviction.

6.  On 23 December 1971, the major general serving as the general court-martial convening authority and the authorized separation authority accepted the applicant's waiver of a hearing before a board of officers and approved the applicant's discharge.  The commander also directed that the applicant be issued an Undesirable Discharge Certificate.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-206 based on misconduct (conviction by civil court) with a character of service of under conditions other than honorable.

	a.  He completed 1 year and 6 days of net active service.

	b.  Item 26a (Non-Pay Periods Time Lost) and item 30 (Remarks) show he had a total of 179 days of time lost under Title 10, U.S. Code, section 972.

8.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct, which included conviction by civil court.  This regulation provided 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 was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, 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 contends that his discharge under other than honorable conditions should be upgraded because he was not given an opportunity to represent himself during the discharge process.

2.  Records show that the applicant acknowledged receipt of the notification of separation action for misconduct (civil conviction) on 4 November 1971 and he waived consideration of his case by a board of officers, waived personal appearance before a board of officers, elected not to submit statements in his own behalf, waived representation by military counsel, and indicated he had not retained civilian counsel to present his case before a board of officers.  Thus, the evidence of record clearly refutes the applicant's contention.

3.  Records show the applicant's discharge under the provisions of Army Regulation 635-206 based on misconduct (civil conviction) was administratively correct and in compliance with applicable regulations in effect at the time.  Lacking evidence to the contrary, all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, records show the applicant was properly and equitably separated from active duty.  Considering all the facts of this case, the type of discharge and character of service directed were appropriate.

4.  The applicant's military service records show he had a total of 179 days (almost 6 months) of time lost at the time of his discharge and he completed only about 1 year of his 3-year active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general discharge.

5.  In view of all of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110023328



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ABCMR Record of Proceedings (cont)                                         AR20110023328



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