IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110024917 


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 undesirable discharge be upgraded.

2.  He states a hearing was convened at Fort Gordon, GA (taken to mean a hearing by a board of officers for the purpose of determining whether he should be eliminated from the service) despite his non-availability due to his being incarcerated.  Therefore, he was not afforded the means or ability to present evidence in the matter.

3.  He 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.  His records show he enlisted in the Regular Army on 24 May 1968.  He completed training and was awarded military occupational specialty 94B (Cook).

3.  He accepted nonjudicial punishment (NJP) on:

* 6 September 1969 for being absent without leave (AWOL) from his unit and borrowing money from another Soldier
* 13 October 1969 for placing unofficial unauthorized long distance telephone calls charged to official telephones in the amount of $231.72

4.  On 15 April 1970, he was charged with being AWOL from his overseas replacement company.  

5.  On about 9 April 1975, the Personnel Control Facility commander stated in a memorandum endorsement that the applicant was tried in Muscogee Superior Court, Columbus, GA, in April 1972, for aggravated battery for which he was sentenced to confinement for 20 years and five counts of armed robbery for which he was sentenced to life imprisonment.  The commander stated the applicant was notified of his proposed discharge under the provisions of Section VI, Army Regulation 635-206 (Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)). 

6.  A DA Form 3975 (Military Police Report), dated 11 April 1975, states the applicant was apprehended by civil authorities, on 26 November 1971, at Columbus, GA for five counts of armed robbery and for aggravated battery.  The applicant appeared in Muscogee Superior Court, Columbus, GA on 18 April 1972, was found guilty, and was sentenced to 20 years for each count for robbery (confined to hard labor for natural life) and 20 years for aggravated battery.  The applicant was being detained in Wayne Correctional Institute, Odum, GA.

7.  There is no indication the applicant appealed his civil conviction.

8.  On 10 June 1975, a board of officers convened for the purpose of determining whether he should be eliminated from the service under provisions of Army Regulation 635-206 due to his conviction by a civil court.  The summary of proceedings included the following information.

   a.  The applicant did not appear before the board as he had been tried, convicted, and sentenced by a civil court and was serving his sentence in civil confinement.  Captain K----- acted as counsel for the applicant.  The defense counsel had corresponded with the applicant and the warden by letter and telephone requesting the applicant's presence at the board, but it was denied.
   b.  On 21 May 1975, the applicant was notified of the hearing.
   
   c.  The board recommended the applicant be discharged from the service because of conviction by civil court under provisions of Army Regulation 635-206 and that he be given an Undesirable Discharge Certificate.

9.  On 1 July 1975, the appropriate authority approved the recommendation that the applicant be discharged from the service because of conviction by a civil court under the provisions of Army Regulation 635-206 and directed that the applicant be issued an Undesirable Discharge Certificate.

10.  On 16 July 1975, he was discharged under the provisions of Army Regulation 635-206 due to a civil conviction.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 9 months, and 7 days of net active service that was characterized as under other than honorable conditions.  He had 421 days of time lost prior to his normal expiration of term of service (ETS) and 1,515 days of time lost subsequent to his normal ETS.

11.  Army Regulation 635-206, then in effect, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of conviction by civil court.

	a.  Section VI (Conviction by Civil Court) stated that an individual will be considered for discharge when he had been initially convicted by civil authorities, or action had been taken against him which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year. 

	b.  The discharge or recommendation for discharge would not be accomplished or submitted until the individual had indicated in writing that he did not intend to appeal the conviction, or until the time in which an appeal may be made had expired, whichever was earlier, or if the appeal had been made, until final action had been taken thereon.

	c.  An individual discharged for conviction by a civil court normally would be furnished an Undesirable Discharge Certificate.

12.  On 3 December 1980, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge.

13.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He accepted NJP on two occasions.  He had been AWOL for over 7 months when he was apprehended by civil authorities on 26 November 1971 at Columbus, GA for five counts of armed robbery and for aggravated battery.  He appeared in Muscogee Superior Court, Columbus, GA on 18 April 1972, was found guilty, and was sentenced to 20 years for each count for robbery (confined to hard labor for natural life) and 20 years for aggravated battery.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. 
 
2.  Evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable discharge or to a general discharge under honorable conditions.

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)                                         AR20110024917



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ABCMR Record of Proceedings (cont)                                         AR20110024917



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