IN THE CASE OF: 

		BOARD DATE:	    18 December 2012

		DOCKET NUMBER:  AR20120010716 


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 to an honorable discharge.

2.  The applicant states he was on "annual leave" at the time he was arrested and could not sign back into his unit so he was placed in an absent without leave (AWOL) status.  He also states he was served with his discharge while he was serving his time in prison.

3.  The applicant provides a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim) and a copy of his 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 enlisted in the Regular Army in Montgomery, Alabama, on 16 November 1972 for a period of 3 years, training as a military policeman, and assignment to Fort Rucker, Alabama.

3.  He completed basic training at Fort Knox, Kentucky, and was transferred to Fort Gordon, Georgia, to undergo advanced individual training (AIT) as a military policeman.

4.  On 13 April 1973, nonjudicial punishment (NJP) was imposed against him for being AWOL from 2 to 9 April 1973.

5.  On 17 April 1973, NJP was imposed against him for failing to repair.

6.  The applicant was disqualified for further training as a military policeman and was transferred to Fort Jackson, South Carolina, to undergo AIT as a supplyman.  He completed his training and received orders transferring him to Fort Rucker.  His records show he was AWOL from 20 to 28 August 1973; however, the record is silent as to disposition of those charges.  He departed for Fort Rucker on 4 September 1973.

7.  On 28 November 1973, NJP was imposed against him for being AWOL from 22 to 25 October and 3 to 6 December 1973.

8.  On 13 June 1974, he was convicted by a special court-martial of being AWOL from 2 April to 6 May 1974.  He was sentenced to confinement at hard labor for 70 days, reduction to pay grade E-1, and a forfeiture of pay.  He was confined at Fort Benning, Georgia, and then transferred to the Army Retraining Brigade at Fort Riley, Kansas.  He completed the training cycle and remained assigned to Fort Riley.

9.  On 20 January 1975, NJP was imposed against him for failing to repair.

10.  On 14 February 1975, the applicant was arrested in Georgia and charged with burglary.  He was convicted by civil authorities on 22 April 1975 and sentenced to incarceration in the State Penitentiary for 3 years.

11.  On 14 July 1975 the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) due to his conviction by civil authorities.

12.  After consulting with defense counsel, the applicant indicated he was not appealing his civil conviction.  He also requested consideration by a board of officers and elected to submit a statement in his own behalf wherein he requested a general discharge.

13.  On 26 November 1975, a board of officers convened at Fort Riley with the applicant being represented by counsel.  After considering the available evidence and testimony presented, the board recommended an undesirable discharge.  The appropriate authority approved the findings and recommendations of the board on 23 December 1975 and directed the issuance of an Undesirable Discharge Certificate.

14.  Accordingly, he was discharged under other than honorable conditions on  19 February 1976 under the provisions of Army Regulation 635-206 due to conviction by civil authorities.  He completed 1 year, 9 months, and 27 days of active service and had 493 days of lost time due to AWOL and confinement.

15.  On 6 August 1975, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge so he could retain his military benefits after being released from incarceration.

16.  On 13 July 1978, after considering all of the available evidence in his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his request.

17.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 33 provided that members convicted by civil authorities would be processed for separation.  A discharge could not be initiated unless the individual concerned declined to appeal the civil conviction or until his or her appeals had been exhausted.  An undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted.

19.  Army Regulation 635-200, 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.

20.  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.

21.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or AWOL.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case and properly characterize his service during the period in question.

3.  The applicant's contentions and supporting statement have been noted.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  Accordingly, there appears to be no basis to grant his request for an upgrade of 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 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)                                         AR20120010716



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ABCMR Record of Proceedings (cont)                                         AR20120010716



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