IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120002700 


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 (UD) be upgraded to a general discharge and a personal appearance before the Board with counsel provided.  

2.  The applicant states:

	a.  That he was never afforded any type of due process.  His military record shows no other misconduct.  A Staff Sergeant Exxxxxx, a military police and not military counsel, contacted him prior to his hearing to explain the ratification of the seriousness of that hearing and the type of discharge.

	b.  He is providing a statement from his former commander that states he never received any punishment while he was a member of his unit.   

3.  The applicant provides:

* separation notification memorandum
* statement from the Acting Commander, U.S. Army Personnel Control Facility
* DD Form 214 (Report of Separation from Active Duty)

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's military record shows he enlisted in the Regular Army in pay grade E-3 on 1 March 1974, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  

3.  He was reported absent without leave (AWOL) on 4 July 1974 and dropped from the rolls as a deserter on 3 August 1974.  He returned to military control on 21 August 1974.

4.  He was again reported AWOL on 9 September 1974 and was dropped from the rolls as a deserter on 10 September 1974.  

5.  On 16 May 1975, he was arrested by the Los Angeles Police Department in possession of a stolen vehicle.  He was convicted of fraud and sentenced to 
2 years in a civilian correctional center.

6.  On 12 February 1976, the Chief, Personnel Actions Unit Trainee Personnel Section, notified the applicant:

   a.  That he was being considered for separation from the Army due to civil conviction for fraud and subsequent confinement.
   
   b.  Army regulations provide for the discharge of a Soldier without his return to military control if he had been convicted by a civilian court of an offense for which maximum punishment under the Uniform Code of Military Justice in confinement in excess of one year.  If a Soldier's separation from the service is recommended because of the conviction by civilian court, he will be contacted and advised of his rights.  If his separation is not recommended, he will be returned to military control and to his unit upon release from civilian confinement. Before a determination could be made in his case, it was necessary that he furnish the following information:
   
   
   	1.  date and place of arrest
   	2.  name and address of the court, to include date tried or date of trial
   	3.  length of sentence
   	4.  date of AWOL

7.  On 4 June 1976, the applicant acknowledged receipt of the proposed action to discharge him from the Army by reason of conviction by civil authorities under the provisions of Army Regulation 635-206 (Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion).  He acknowledged that he could be furnished a UD Certificate.  He waived his right to military counsel and to have his case heard by a board of officers.  He elected not to submit a statement in his own behalf.  He acknowledged that he had been sentenced to serve 2-6 years for two counts of forgery.

8.  On 26 July 1976, the Acting Commander, U.S. Army Personnel Control Facility, recommended the applicant be discharged because of misconduct under the provisions of Army Regulation 635-206 (Conviction by Civil Court).

9.  In a letter, dated 26 July 1976, the Acting Commander, U.S. Army Personnel Control Facility, stated that the applicant had received no punishment at that unit.

10.  On 29 July 1976, the garrison commander recommended approval of the applicant's discharge.

11.  On 26 August 1976, the appropriate separation authority approved the applicant's discharge for misconduct and directed that he be issued a UD Certificate and reduced to pay grade E-1.

12.  On 20 September 1976, he was discharged in pay grade E-1, under the provisions of Army Regulation 635-206, for misconduct - conviction by civil court, and issued a UD.  He was credited with completing 3 months and 11 days of active service with 792 days of time lost.

13.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

14.  Army Regulation 635-206, in effect at the time, stated that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted a UD was considered appropriate.

15.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-7b states 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.  

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  Applicants may be represented by counsel, at their own expense.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was recommended for discharge by reason of civil conviction.  He acknowledged the reason for his discharge and that he could receive a UD.  He waived his right to counsel, to have his case heard by a board of officers, and elected not to submit a statement in his own behalf.  He also acknowledged that he had been sentenced to serve 2-6 years for 2 counts of forgery.

2.  It is apparent that the applicant's command ensured that the proper documents were prepared and signed by the proper authorities to ensure that he was discharged according to regulatory authority.  Separation was conducted in accordance with Army Regulation 635-206, for civil court conviction

3.  He has provided no evidence to show that his discharge was unjust at the time of his offense.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  With respect to the personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  Counsel is not provided by the Board; however, an individual may be represented by counsel at his own expense.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

5.  In view of the foregoing, there is no basis for granting his 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)                                         AR20120002700





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ABCMR Record of Proceedings (cont)                                         AR20120002700



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