IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20120002012 


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 general under honorable conditions.

2.  The applicant states he was discharged due to racial tensions and his youth which drove him out of the service because of fear for his self-preservation.  He states he was threatened due to his race and age and he had no one to turn to.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 12 December 2011
* page 3 of his DA Form 2-1 (Personnel Qualification Record – Part II)
* page 2 of his DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 23 February 1968
* Standard Form 88 (Report of Medical Examination), dated 23 February 1968
* DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 25 February 1969
* DA Form 2627-1, dated 28 February 1969
* DA Form 2627-1, dated 19 March 1969
* DA Form 2627-1, dated 7 April 1969
* DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) – Record of Court-Martial Conviction)
* Special Court-Martial Order Number 3631, dated 14 December 1968


* Special Court-Martial Order Number 53, dated 16 July 1969
* Special Court-Martial Order Number 17, dated 16 September 1969
* Special Court-Martial Order Number 138, dated 28 June 1974
* Special Court-Martial Order Number 1671, dated 19 August 1974

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 23 February 1968 at 17 years and almost 8 months of age.

3.  Headquarters, Special Troops, Fort Dix, NJ, Special Court-Martial Order Number 3631, dated 14 December 1968, shows the applicant was found guilty of being absent from his unit from on or about 2 October 1968 to on or about 26 November 1968.

4.  Headquarters, 3d Squadron, 1st Cavalry, 1st Armored Division, Fort Hood, TX, Special Court-Martial Order Number 42, dated 30 June 1969, shows the applicant was found guilty pursuant to his plea of wrongfully appropriating items of individual clothing and equipment, the property of another Soldier, of a value of about $90.00 on or about 9 June 1969.  Headquarters, 3d Squadron, 1st Cavalry, 1st Armored Division, Fort Hood, TX, Special Court-Martial Order Number 17, dated 16 September 1969, set aside the findings of guilty because of an improvident plea of guilty.

5.  The applicant's records contain DA Forms 2627-1 showing nonjudicial punishment under Article 15, UCMJ, was imposed on four occasions between 25 February 1969 and 7 April 1969 for a variety of offenses, including being absent from his unit without authority, being absent from his appointed place of duty without authority, driving a vehicle on post without post registration, driving a vehicle on post without a valid driver's license, and failing to stop at a stop sign.

6.  U.S. Army Personnel Control Facility, Fort George G. Meade, MD, Special Court-Martial Order Number 138, dated 28 June 1974, shows the applicant was found guilty of:

* being absent from his organization from on or about 9 July 1969 to on or about 10 July 1969 (2 days)
* being absent from his organization from on or about 23 September 1969 to on or about 29 March 1974 (1,724 days)

7.  The applicant's records contain correspondence from the General Court of Justice, 15th Judicial District, Clerk Superior Court, Chatham County, NC, certifying that the applicant entered a plea of guilty to armed robbery in the Chatham County Superior Court on 18 March 1975 and was sentenced to the State's prison for a term of 16 years.

8.  On 2 May 1975, the applicant's commander advised him of his intent to recommend his discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), by reason of his conviction and sentence by a civil court.  He was further advised that he might receive an Undesirable Discharge Certificate as a result of this action and of his rights to request appointment of military counsel and present his case before a board of officers in his absence, to submit statements in his own behalf, and to waive the foregoing rights in writing or by declining to reply to the notification within 30 days.

9.  On 24 May 1975, the applicant acknowledged receipt of the letter from his military attorney counseling him about the administrative discharge proceedings pending against him.  He requested a hearing before a board of officers and representation by his military attorney.  He indicated that statements on his own behalf were not submitted with his response.  He understood he could withdraw this waiver and exercise the aforementioned rights up until the date the discharge authority directed or approved his discharge.  He also indicated he intended to appeal his conviction.  He understood that he could expect to encounter substantial prejudice in civilian life in the event that a general discharge under honorable conditions were issued to him.  He further understood that he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life as the result of issuance of an undesirable discharge.

10.  Headquarters, 1st Corps Support Command, memorandum for record, dated 7 July 1975, verified the applicant had not filed an appeal of his conviction for armed robbery with the Chatham County Superior Court and the statutory time for filing an appeal had expired.

11.  On 15 July 1975, the Office of the Staff Judge Advocate, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, stated the applicant's administrative discharge proceedings had been reviewed.  The record indicates the applicant was convicted in the General Court of Justice, Superior Division, Chatham County, NC, on 18 March 1975 of armed robbery and was sentenced to 16 years of confinement.  Armed robbery is punishable by confinement in excess of 1 year under Article 122, UCMJ, and the record supports his discharge under the provisions of Army Regulation 635-206 for a civil conviction.

12.  The applicant's records do not contain the specified findings and recommendation by the board of officers.  However, the applicant's records contain a DA Form 2496 (Disposition Form), dated 14 August 1975, subject:  Board of Officers for [Applicant] under Army Regulation 635-206, which states a board of officers would be held on 29 August 1975 to judge the applicant's case.  His records also contain an endorsement to the Commander, 1st Corps Support Command, Fort Bragg, NC, from the Office of the Staff Judge Advocate, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, dated 6 October 1975, which states a board of officers convened to determine whether the applicant should be discharged due to his conviction of armed robbery by a civil court.  After considering the evidence, the board found that the applicant's two guilty findings of absence without leave and a guilty finding of armed robbery could not justify any recommendation for discharge other than an undesirable discharge.

13.  Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, Special Orders Number 311, dated 17 November 1975, show the applicant was discharged under other than honorable conditions effective that date.

14.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-206 effective 17 November 1975.

15.  On 23 November 1981, the Army Discharge Review Board determined the applicant's discharge was both proper and equitable and denied his request for recharacterization.  The board noted the applicant had received four Article 15's, two special courts-martial, had been AWOL six times, had been confined by civil authorities one time, and had been confined by military authorities one time for approximately 2,081 days.  The board further noted the applicant was discharged because of a civil conviction for armed robbery for which he received a sentence of 16 years of confinement.



16.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  It 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 UCMJ was death or confinement in excess of 1 year.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7b states 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's contention that he was discharged due to racial tensions and his youth which drove him out of the service because of fear for his self-preservation was carefully considered and determined to be without merit.

2.  The applicant's records clearly show he had a history of indiscipline prior to his civil conviction for armed robbery which resulted in his sentence to 16 years of confinement in the State's prison.  Army Regulation 635-206, in effect at the time, provided for the discharge of enlisted personnel for a civil conviction for an offense for which the maximum penalty under the UCMJ was confinement in excess of 1 year.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  There is no evidence in the applicant's records and he provides none to show he experienced racial tensions or any other threatening circumstances that caused or contributed to the misconduct that led to his discharge.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general 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 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)                                         AR20120002012



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ABCMR Record of Proceedings (cont)                                         AR20120002012



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