IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120002063 


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, in effect, the upgrade is necessary for him to qualify for a Department of Veterans Affairs (VA) home loan.  He does not believe there is an error in his military record.

3.  The applicant 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.  The applicant enlisted in the Regular Army on 25 October 1966.  He completed the training requirements and he was awarded military occupational specialty 62A (Engineer Equipment Assistant).  He was assigned to Fort Stewart, GA.  

3.  On 3 March 1967, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order. 

4.  On 14 August 1968, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 30 April 1967 to 12 July 1968.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of pay.  The convening authority approved his sentence on 28 August 1968.

5.  On 2 January 1969, he departed his unit in an AWOL status and on 2 February 1969, he was dropped from Army rolls as a deserter.  

6.  On 3 June 1974, he was convicted by the Eleventh Circuit Court of Florida of assault and larceny against another individual and sentenced to 20 years of imprisonment.  

7.  On 7 November 1974, the applicant's immediate commander forwarded the applicant a letter notifying 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)) by reason of conviction by a civil court with an Undesirable Discharge Certificate.  The commander's letter included a form letter for the applicant to complete indicating whether he:

* requested or waived consideration of his case by a board of officers
* requested or waived personal appearance before a board of officers
* requested or waived representation by military counsel or civilian counsel at his own expense
* was or was not submitting a statement in his own behalf

8.  The applicant acknowledged receipt of the separation memorandum which advised him of his right to consult with legal counsel, the basis for the contemplated separation for a 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 available to him.  He indicated he did not intend to appeal his civil conviction.


9.  On 17 March 1975, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-206 by reason of civil conviction.  On the same date, his intermediate commander recommended approval of the applicant's discharge.

10.  On 20 March 1975, the separation authority approved the applicant's discharge action 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.  

11.  The applicant was accordingly discharged on 27 March 1975.  His DD Form 214 (Report of Separation from Active Duty) shows he completed a total of 1 year, 6 months, and 11 days of total active service with 402 days of lost time prior to the expiration of term of service (ETS) and 2,082 days of lost time subsequent to his ETS date.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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).  That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action was taken against them which were 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.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.

15.  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 discharged by reason of civil conviction under the provisions of Army Regulation 635-206.  He was convicted by a civilian court for various civil charges and he was sentenced to imprisonment in a civilian prison.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and notified him of this action.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  His service was marred by misconduct as evidenced by an instance of NJP for being AWOL in addition to his serious civilian charges.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to an honorable or a general.

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)                                         AR20120002063



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ABCMR Record of Proceedings (cont)                                         AR20120002063



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