IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120003069 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* Without the upgrade, he cannot receive benefits
* He was awarded the Purple Heart
* He does not understand why he was given an under other than honorable conditions discharge
* His crimes were not that severe
* His combat service was not taken into consideration

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 20 (Enlisted Qualification Record)
* Two DA Forms 2627-1 (Record of Proceedings Under Article 15 - Uniform Code of Military Justice (UCMJ))

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 3 February 1966.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He served in Germany from 3 September 1966 to 18 May 1967.  While in Germany, he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on/for:

* 22 December 1966, failure to repair
* 4 April 1967, forging a signed official document

4.  He also served in Vietnam from 25 July 1967 to 24 July 1968.  He was awarded the National Defense Service Medal, Vietnam Service Medal, Purple Heart, and Vietnam Campaign Medal.  

5.  His records show he accepted additional NJP under Article 15 of the UCMJ on/for:

* 22 July 1967, being absent without leave (AWOL) from 24 June to 17 July 1967
* 20 October 1967, failing to go at the time prescribed to his appointed place of duty

6.  On 28 February 1968, he was convicted by a special court-martial of one specification of assaulting another Soldier, one specification of willfully disobeying a lawful order, and one specification of disrespecting a noncommissioned officer.  The Court sentenced him to confinement at hard labor for 3 months and a forfeiture of pay for 3 months.  The convening authority approved his sentence on 6 March 1968.

7.  On 30 August 1968, he was again convicted by a special court-martial of: 

* one specification of assaulting another Soldier
* one specification of willfully discharging a firearm under circumstances such as to endanger human life
* two specifications of disrespecting commissioned officers
* three specifications of disobeying lawful orders

The Court sentenced him to confinement at hard labor for 4 months and a forfeiture of pay for 4 months.  The convening authority approved his sentence on 20 September 1968.

8.  On 25 April 1969, he was found guilty by a civil court of the civilian charges of burglary and larceny.  The civilian court sentenced him to 7 years of imprisonment.

9.  On 14 July 1969, the applicant's immediate commander forwarded him 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 not submitting a statement in his own behalf

10.  The applicant received the acknowledgement of 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 that were available to him.  By letter, dated 1 October 1969, he indicated that he did not intend to appeal his civil conviction.

11.  On 1 October 1969, his commander initiated a Bar to Reenlistment Certificate against him citing his misconduct.  The applicant acknowledged its receipt and elected not to submit a statement on his own behalf.

12.  On 20 October 1969, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-206 by reason of civil conviction.   

13.  On 22 and 24 October 1969, his intermediate and senior commanders recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.

14.  On 18 November 1969, consistent with the chain of command's recommendations and subsequent to a legal review for sufficiency, 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 the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 12 December 1969.  The DD Form 214 he was issued at the time confirms he completed a total of 2 year and 17 days of total active service with 348 days of lost time. 

15.  On 22 September 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

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).  That regulation provided, in pertinent part, 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.  An undesirable discharge was normally considered appropriate.

17.  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.

18.  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 under the provisions of Army Regulation
635-206, by reason of a civil conviction.  He was convicted by a civilian court for burglary and larceny and he was sentenced to imprisonment.  As required by the 7776168applicable 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.  Notwithstanding his combat service and award of the Purple Heart, his conviction clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by four instances of NJP, two courts-martial, and a bar to reenlistment.  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 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)                                         AR20120003069





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ABCMR Record of Proceedings (cont)                                         AR20120003069



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