IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120010314 


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 general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he is attending college and was told he needed to upgrade his discharge to get veterans residency.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 28 November 1983.

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.  In Item 36 (Involvement with Police or Judicial Authorities) of his DD Form 1966 (Record of Military Processing - Armed Forces of the United States), dated 30 March 1983, he was to have listed all of his police involvement.  He listed the following offenses:

Offense
Date
Place
Disposition
Possession of drugs
September 1982
Oak Harbor, WA
Dismissed
No motorcycle endorsement
May 1982
Oak Harbor, WA
$130 Fine
Speeding
July 1980
Chico, CA
$50 Fine
Speeding
July 1979
Chico, CA
$50 Fine

3.  He enlisted in the Regular Army on 17 August 1983.  

4.  On a DA Form 2823 (Sworn Statement), dated 13 October 1983, he stated he was charged with assault on 7 July 1980 in Chico, CA.  The court at which he was to appear was the Chico Municipal Court in Chico, CA and sentence was not imposed because he left the state before charges were brought to court.  He did not disclose this information to his recruiter as he thought he would not get in the Army if he did so.  While he was in Washington he was in jail and California knew he was there but wouldn't come and get him.  The sheriff's department told him to stay out of California.

5.  A letter, dated 3 November 1983, from the Police Department, City of Chico, CA listed the following offenses:

Date of Arrest
Charge
Disposition
6 July 1979
Petty Theft
90 days jail sentence
16 July 1979
Petty Theft with priors
Concurrence 90 days
27 April 1980
Vehicle violation warrant
48 hours jail, $320 fine
6.  On 21 November 1983, his commander notified him he was initiating action to separate him under the provisions of chapter 7, section V, of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) due to concealment of civil convictions.  He advised him this separation could result in a discharge under other than honorable conditions.  He was advised he had the right to:

* consult with military counsel or civilian counsel at no expense to the government
* submit a written statement in his own behalf
* present his case before an administrative board if being recommended for an under other than honorable discharge
* to waive the above rights in writing
* to withdraw the waiver at any time up until the date the discharge authority orders, directs, or approves his separation and request a board of officers hear his case

7.  On 21 November 1983, he acknowledged he had been advised by his consulting counsel of the basis for the contemplated action for his separation and its effects, of the rights available to him, and the effect of any action by him in waiving his rights.  He understood that if he was not being considered for a discharge under other than honorable conditions, he would neither have his case considered by a board of officers, nor have a right to counsel for representation.  He elected: 

* to have his case be considered by a board of officers
* to appear before a board of officers
* not to submit statements in his own behalf
* to have consulting counsel for representation

8.  He understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that as the result of the issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

9.  On 21 November 1983, his commander recommended he be separated under the provisions of chapter 7, section V of Army Regulation 635-200 due to concealment of a civil conviction.  The commander stated the applicant did not tell his recruiter of the violations that occurred in the state of California.  He had performed marginally and had required extra supervision in order to meet training requirements.

10.  On 22 November 1983, the approving authority approved his discharge with a general discharge under honorable conditions.

11.  On 28 November 1983, he was discharged by reason of fraudulent entry.  Authority for separation is shown as Army Regulation 635-200, 
paragraph 7-17b(3).  He completed 3 months and 12 days of active service that was characterized as under honorable conditions.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	b.  Paragraph 7-17b(3) (Concealment of conviction by civil court) stated a member who concealed his or her conviction by a civil court of a felonious offense normally will not be considered for retention.

DISCUSSION AND CONCLUSIONS:

1.  During his processing for discharge he requested his case be considered by a board of officers.  However, he was not entitled to have his case considered by a board of officers because he was not recommended for an under other than honorable conditions discharge.

2.  He clearly concealed three civil convictions from his recruiter.  The two convictions for petty theft are considered serious as theft amongst Soldiers would not be tolerated in any way.  Therefore, separation was appropriate.  

3.  The evidence shows he was properly discharged in accordance with regulations in effect at the time.  The reasons for discharge were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

4.  In his recommendation for separation the applicant's commander indicated he had performed marginally and had required extra supervision in order to meet training requirements.  Therefore, even in his short period of service, he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the above, there is an insufficient basis to upgrade his 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)                                         AR20120010314



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ABCMR Record of Proceedings (cont)                                         AR20120010314



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