BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120021196 


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, in effect, an upgrade of his under other than honorable conditions discharge.  

2.  In item 5 (I Request the Following Error or Injustice in the Record be Corrected) of his application, the applicant states, "Yes."  In item 6 (I Believe the Record to be in Error or Unjust for the Following Reasons) of his application, he states, "so that I can be considered for a pension check, have my discharge overturned."  He adds that he is a model citizen and he has been out of prison for 7 years.  He is also free of use of drugs and alcohol. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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.  His records show he enlisted in the Regular Army on 30 July 1968 and he held military occupational specialty (MOS) 11H (Infantry Direct Fire Crewmember).  

3.  Upon completion of MOS training, he was reassigned to the 2nd Battalion, 59th Infantry, in Germany.  The highest rank/grade he attained during this period of military service was private first class/E-3. 

4.  His DA Form 20 (Enlisted Qualification Record) shows he had an extensive history of absence without leave (AWOL) and/or confinement as follows:

* 13 April 1969 to 17 June 1969 - AWOL
* 20 June 1969 to 12 October 1969 - AWOL
* 23 October 1969 to 6 January 1970 - AWOL
* 30 January 1970 to 13 June 1971 - AWOL and Confined
* 9 July 1971 - AWOL
* 8 to 9 August 1971 - AWOL

5.  His DA Form 20 also shows after he departed AWOL on 30 January 1970, he was arrested by civil authorities in Indianapolis, IN, on an unknown date for the civilian charge of burglary.  He was tried by civil court and convicted of the charge.  The court sentenced him to 1 to 10 years of confinement.

6.  His immediate commander notified 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)) for his civil conviction.

7.  On 14 July 1971, the applicant acknowledged receipt of the separation memorandum and indicated he did not intend to appeal his conviction.  He was advised of the basis for the contemplated separation for 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.  He waived his right to consult with counsel.  He further waived consideration of his case by a board of officers and appearance before a board of officers, and elected not to submit a statement on his own behalf.  He further acknowledged he understood that:

	a.  He could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him. 
	b.  As a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.

8.  His immediate commander initiated separation action against him under Army Regulation 635-206 for his civil conviction.  

9.  His senior commander recommended approval with the issuance of an undesirable discharge.  He stated that the applicant, while AWOL, was convicted on 12 June 1970 by the Criminal Court of Marion County, IN, for the charge of burglary and he was sentenced to a term of not less than 1 year and not more than 10 years at the Indiana State Reformatory.  

10.  On 5 August 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for willful misconduct by reason of civil conviction and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 7 September 1971. 

11.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-206 with an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate.  He completed 11 months and 29 days of creditable active service and he had 760 days of lost time.  

12.  On 2 May 1978, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of his discharge.

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.
14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policies and procedures for the separation of enlisted personnel.  

	a.  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.

	b.  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 evidence of record shows the applicant was convicted by a civilian court of burglary and he was sentenced to confinement.  Accordingly, his chain of command initiated separation action against him and he was accordingly notified.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

2.  His overall military service was marred with various types of misconduct that included multiple instances of AWOL in addition to his civilian conviction.  While his offense occurred within the civilian community, it clearly brought discredit upon him and the Army.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The applicant's efforts in improving himself by being a model citizen as well as being free of drugs and alcohol are noted.  However, his actions at the time clearly brought discredit upon himself and the Army.  His service was marred by misconduct and the available evidence is not sufficient to mitigate his actions.   Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20120021196



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ABCMR Record of Proceedings (cont)                                         AR20120021196



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