IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110023710 


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 discharge be upgraded.

2.  The applicant states, in effect, he has Hepatitis C and he needs help.  He needs his discharge upgraded so that he may qualify to go to the Department of Veterans Affairs (VA).  He received a civil conviction for a silly act of joy-riding as a youth and it has haunted him over the past 34 years.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 23 November 2011.

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 28 October 1976 and he held military occupational specialty 11B (Infantryman).  He was assigned to the 1st Battalion, 23rd Infantry Regiment, Korea, on 4 March 1977.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 7 May 1977, wrongfully possessing a false leave form
* 19 August 1977, violating a lawful order
* 6 September 1977, stealing a gold necklace from another Soldier
* 17 September 1977, failing to report to his prescribed place of duty on two separate occasions
* 16 October 1977, failing to report to his prescribed place of duty on two separate occasions
* 13 January 1978, stealing a television from a Korean national

4.  On 29 March 1978, he was reported absent without leave (AWOL) from his assigned place of duty.

5.  On 10 April 1978, he was reported as confined by civil authorities in San Francisco, CA.

6.  A State of California court order, dated 17 May 1978, shows the applicant was convicted of automobile theft and served 37 days in county jail.

7.  On 19 May 1978, he surrendered to military authorities at Fort Carson, CO.

8.  On 1 June 1978, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 29 March to 18 May 1978.

9.  On 16 June 1978, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 14, for conviction by a civil court.  The commander stated he was recommending him for an under other than honorable conditions discharge.

10.  On 16 June 1978, he acknowledged receipt of the notification of his proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the possible effects of an under other than honorable conditions discharge and a general discharge.  He was also advised of the procedures and rights that were available to him.  

11.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life.  He waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf.

12.  On 21 June 1978, his immediate commander recommended that the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The commander cited the applicant's conviction by a civil court and his 1 June 1978 Article 15.

13.  On 29 June 1978, his senior commander recommended approval of the applicant's separation.

14.  On 11 July 1978, the applicant submitted a statement wherein he indicated that he did not intend to appeal his civil conviction.

15.  On 28 July 1978, the separation authority approved his discharge action under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 9 August 1978, he was discharged accordingly.

16.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - civil conviction with an under other than honorable conditions characterization of service.  He completed 1 year, 7 months, and 22 days of creditable active service with 49 days of lost time due to being AWOL and in civil confinement.

17.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge prior to 23 November 2011, which was after that board's 15-year statute of limitations had expired.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  Upon determination that a member is to be separated with a discharge under other than honorable conditions, the approving authority will direct reduction to the lowest enlisted grade.


19.  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.

20.  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 evidence of record shows the applicant was convicted by a civil court of automobile theft.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct - civil conviction.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  

2.  It is clear that the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for being AWOL and his conviction by a civil court for automobile theft.  Based on his overall record the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20110023710



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ABCMR Record of Proceedings (cont)                                         AR20110023710



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