IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110024663 


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, an upgrade of his undesirable discharge.

2.  The applicant states at the time of the incident, he had no knowledge of the law and did not understand what was happening.  He was scared into a guilty plea by the judge.  He had witnesses who knew he did not commit the crime for which was convicted, but the court would not subpoena them.

3.  The applicant provides his 1974 guilty plea record.

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 1 February 1974 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 1 June 1974, while in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 20 to 25 May 1974.

4.  On 13 June 1974, he was arrested by civil authorities in Georgia and charged with two counts of robbery by force.

5.  On 28 August 1974, pursuant to his guilty plea, the Superior Court of Muscogee County, Georgia, sentenced him to confinement at hard labor for
3 years on each count.

6.  On 17 September 1974, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation
635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for a civil conviction.

7.  On 18 September 1974, his immediate commander initiated a
DA Form 4126-R (Bar to Reenlistment Certificate) against him citing his civil conviction.

8.  On 11 October 1974, the applicant acknowledged receipt of the separation memorandum.  On 16 October 1974, he waived his right to consulting counsel of the basis for the contemplated separation to accomplish his separation under the provisions of Army Regulation 635-206 for a civil conviction.  He further waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf.

9.  He further acknowledged he understood he could encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

10.  On 22 October 1974, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-206 by reason of civil conviction with an undesirable discharge.

11.  On 23 October and 11 November 1974, his intermediate commanders concurred with the recommended to eliminate the applicant from service under the provisions of Army Regulation 635-206 with issuance of an Undesirable Discharge Certificate.

12.  On 25 November 1974, the separation authority, a major general, 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 13 December 1974.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed a total of 4 months and 12 days of creditable active service with 184 days of time lost.

13.  On 18 April 1983, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the chain of command.  Furthermore, Army Regulation 635-206, paragraph 33 provided that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) provides the basic policies and procedures 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.

16.  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 was convicted by a civilian court of two counts of robbery and he was sentenced to confinement at hard labor.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.

2.  His actions at the time clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by his previous NJP for being AWOL.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  In view 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 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)                                         AR20110024663



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ABCMR Record of Proceedings (cont)                                         AR20110024663



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