IN THE CASE OF:	  

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120006649 


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 (UD).  

2.  The applicant states he has learned from his mistakes.  He claims at the time of his discharge, he was involved with the wrong people.  

3.  The applicant provides no additional documentary 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.  On 21 October 1968, the applicant enlisted in the Regular Army for 3 years.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and private first class (PFC)/E-3 is the highest grade he held while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  The applicant’s disciplinary history in the Army includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions between 6 August 1969 and 26 August 1970; and a summary court-martial (SCM) conviction on 
23 July 1970.  His record also shows he accrued 224 days of time lost due to two periods of being absent without leave (AWOL) and two periods of confinement by civil authorities.  

4.  On 4 September 1970, while pending court-martial charges, the applicant departed AWOL from his unit at Fort Carson, Colorado.  While in an AWOL status, he was convicted in a civil court of conspiracy to commit aggravated robbery.  He was sentenced to serve not less than one year and not more than three years in the Colorado State Penitentiary. 

5.  On 24 February 1971, the applicant was advised that separation action was being initiated on him under the provisions of Army Regulation 635-206 (Personnel Separations Discharge Misconduct) and of his rights in connection with this action.  

6.  On 25 February 1971, the applicant completed an election of rights in which he waived consideration of his case by a board of officers; personal appearance before a board of officers; representation by counsel; and he elected not submit statements in his own behalf.  

7.  On 1 March 1971, the unit commander initiated a recommendation that the applicant be discharged under the provisions of Army Regulation 635-206, by reason of misconduct.  He cited the applicant’s civil conviction and the fact he was pending court-marital charges for multiple offenses at the time of his arrest by civil authorities as the bases for taking the action.  The unit commander recommended the applicant receive a UD.  

8.  On 30 March 1971, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206, by reason of misconduct, and directed the applicant be reduced to the lowest enlisted grade and that he be issued a UD certificate.  On 13 April 1971, the applicant was discharged accordingly.  

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant upon his discharge shows he completed a total of 1 year, 10 months, and 11 days of creditable active military service and had accrued 224 days of time lost due to AWOL and civil confinement.  

10.  On 15 November 1977, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s entire military record and all of the available evidence, determined the applicant’s discharge was proper and equitable and voted unanimously not to change the characterization or reason for the applicant’s discharge.  The ADRB held a personal appearance hearing on the applicant's case on 19 September 1980.  On 14 November 1980, after careful consideration of the applicant’s military record and all the evidence and testimony received, the ADRB again determined the applicant’s discharge was proper and equitable and voted unanimously not to change the characterization or reason for the applicant’s discharge.

11.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge (HD) or a GD if it were warranted based on the member's record of service.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.

	a.  Paragraph 3-7a provides that an HD 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.

	b.  Paragraph 3-7b provides that a GD 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his discharge be upgraded because he has learned from his mistakes has been carefully considered.  However, the fact the applicant now accepts responsibility for his actions is not sufficiently mitigating to support an upgrade of his discharge at this late date.  
2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant’s record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes multiple NJP actions and an SCM conviction, and several pending court-martial charges at the time of his civil conviction and incarceration.   As a result, the UD he received accurately reflects the overall quality of his service.

4.  Absent any evidence of error or injustice in the discharge process, and given the applicant’s overall record of undistinguished service and the two previous ADRB decisions, there is an insufficient evidentiary basis to support granting the 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)                                         AR20120006649



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ABCMR Record of Proceedings (cont)                                         AR20120006649



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