IN THE CASE OF:	  

		BOARD DATE:  23 October 2012

		DOCKET NUMBER:  AR20120007165 


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 undesirable discharge to a general discharge.

2.  He states he believes he was charged without any legal representation and the Army lawyer never informed him of his options when he was charged.  He also states he was charged when he was young, but now that he is older, he has seen the light.  He concludes he needs his discharge upgraded in order to receive medical services from the Department of Veterans Affairs (VA).

3.  He 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 was born on 6 May 1955 and enlisted in the Regular Army on 21 September 1972 at the age of 17 years, 4 months, and 16 days.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/
E-3.  However, he held the rank/grade of private (PV1)/E-1 at the time of his discharge.

3.  His military service record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* disobeying a lawful order from a noncommissioned officer (NCO) on
23 February 1973
* being absent without leave (AWOL) from 27 August 1973 to 29 August 1973

4.  Summary Court-Martial Order Number 19, issued by Headquarters,
1st Battalion, 81st Armor Regiment, 1st Cavalry Division, dated 24 May 1973, shows the applicant appeared before a summary court-martial and he was found guilty of violating:

	a.  Article 92 of the UCMJ by disobeying a lawful order from an NCO on
19 April 1973, and

	b.  Article 86 of the UCMJ by being AWOL from 19 April 1973 to 5 May 1973.

5.  The applicant was arrested by civil authorities on 15 January 1974.  His record contains a Copy of Judgment - Conviction by Court Plea of Guilty or Nolo Contendere (No Contest) Punishment by Court rendered by the District Court of Comanche County, TX, dated 4 February 1974.  This document shows he was convicted of theft and sentenced to imprisonment for 3 years.  Accompanying this document is a voluntary statement by the applicant, dated 13 January 1974, wherein he confessed to breaking into and stealing property from several vehicles, destruction of private property, possession and use of illegal drugs, and possession of a weapon.

6.  On 29 May 1974, the applicant's unit commander recommended that a board of officers be convened under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) to determine whether the applicant should be discharged for conviction by a civil court.  The commander cited the applicant's aforementioned punishments under Article 15 and summary court-martial in addition to numerous adverse counseling sessions for unsatisfactory uniform, 

work performance, appearance of his room in the barracks, haircut, timeliness, attitude towards work, personal appearance, and attitude towards superiors.  The commander also noted the applicant was currently confined in the Texas State Prison at Huntsville, TX.  The commander stated that in the event the board determined the applicant should be discharged, he recommended an undesirable discharge.  The commander further stated a letter of notification was sent to the applicant via registered mail and a reply was received on 15 March 1974.  The applicant's intermediate level commanders concurred with the unit commander's recommendation.

7.  The applicant's record contains a Summarized Record of Proceeding of Elimination Board Held in the Case of (the applicant) that was conducted on 2 October 1974.  This document shows the applicant was represented by legal defense during the proceedings.  Following the careful consideration of all evidence brought before it, the elimination board determined the applicant should be separated from military service with an undesirable discharge.

8.  On 11 November 1974, the separation authority, a major general, approved the finds and recommendations of the board with a separation program designator (SPD) code of JKB, and directed the applicant be issued an Undesirable Discharge Certificate.

9.  On 5 December 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200 under SPD JKB, involuntary discharge by reason of misconduct – civil conviction, with an Undesirable Discharge Certificate.

10.  On 4 March 1981, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge to a general discharge.  In his request he stated that a discharge hearing in his absentia was unfair.  He did not deny becoming involved in a civil offense, but his crimes were not violent and his behavior stemmed from all of the drugs he had taken.  He contended that had he been able to explain to the elimination board that drugs were the mitigating cause of his problems, he would have received a more favorable discharge.  He also argued that his discharge was severe when compared to current standards and that he should have received rehabilitation instead of punishment.

11.  On 13 August 1981, The Adjutant General informed the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.
12.  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).  This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action had been 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.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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's contention that his undesirable discharge should be upgraded to a general discharge was carefully considered and determined to lack merit.

2.  The applicant's civilian and military record reveals a disciplinary history that includes numerous offenses to include punishment under Article 15, conviction by summary court-martial, and a civilian court conviction.

3.  Records show the applicant was nearly 18 years of age at the time of his initial offense and 19 years of age when he was arrested and convicted by civil authorities.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, there is no basis for granting the applicant's 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)                                         AR20120007165



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ABCMR Record of Proceedings (cont)                                         AR20120007165



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