IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110024899 


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 undesirable discharge to a general discharge.

2.  The applicant states at the time of his discharge, he was informed that his sister had died.  He was incoherent at the time and without going through the proper channels, he decided to go home to be with his family.  He was supposed to report to Homestead Air Force Base after the funeral but he started drinking and he was picked up for a driving under the influence (DUI) charge.  He was imprisoned for one year.  His mental condition was not good at the time.

3.  The applicant provides 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 was inducted into the Army of the United States on 1 July 1969 He completed basic combat training at Fort Gordon, GA, and he was reassigned to another unit to complete advanced individual training.  

3.  On 10 October 1969, he departed his unit in an absent without leave (AWOL) status and on 12 November 1969, he was dropped from the rolls as a deserter.  

4.  On 20 March 1972, while still in a deserter status, he was convicted by a civil court of the civilian charge of resisting an officer with violence to his person.  He was sentenced to a 1-year incarceration.  

5.  On 8 June 1972, 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 civil conviction.  

6.  The applicant subsequently acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived appearance before a board of officers, elected not to submit a statement on his own behalf, and indicated he did not intent to appeal his civil conviction.

7.  The applicant further acknowledged he understood that he could encounter substantial prejudice in civilian life in the event an undesirable 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 encounter substantial prejudice in civilian life.

8.  On 28 September 1972, his commander initiated separation action against him by reason of civil conviction.  His chain of command recommended approval with the issuance of an under other than honorable conditions discharge.

9.  On 28 October 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 that he be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 21 November 1972.  The DD Form 214 he was issued at the time confirms he completed a total of 3 months and 29 days of active service and he had 629 days of lost time.

10.  On 22 February 1978, the Army Discharge Review Board reviewed his discharge and determined it was proper.  Accordingly, it denied his petition for an upgrade. 

11.  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, in pertinent part, 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, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel 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.

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 evidence of record shows the applicant departed his unit in an AWOL status on 10 October 1969 and he was dropped from the Army rolls as deserter on 12 November 1969.  While in a deserter status, he was convicted by a civilian court for resisting an officer with violence to his person.  He was sentenced to a 1-year incarceration.
2.  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.  

3.  There is no evidence in his records and he provides none to show he encountered the death of a family member at the time.  More importantly, by his own admission, he failed to go through proper channels and address the issue with his chain of command.  

4.  His actions at the time brought discredit upon himself and the Army.  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.  Therefore, 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)                                         AR20110024899



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ABCMR Record of Proceedings (cont)                                         AR20110024899



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