IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120021803 


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 a general discharge (under honorable conditions).

2.  The applicant states that he was suffering from post-traumatic stress disorder (PTSD) when he went absent without leave (AWOL) and got into trouble.

3.  The applicant provides:

* Department of Veterans Affairs (VA) letter, dated 19 October 2011
* VA Form 21-4138 (Statement in Support Of Claim)
* Regional Crime Information Center Response, dated 17 November 2011

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 3 November 1965.  He completed training and was awarded military occupational specialty 11B (light weapons infantryman).  He served in Vietnam from 2 August 1966 to 9 July 1967 and was assigned to Company A, 5th Battalion, 7th Cavalry, 1st Cavalry Division as a grenadier.

3.  Special Court Martial-Order Number 367, dated 21 March 1968, issued by Headquarters, Special Troop, U.S. Army Armor Center, Fort Know, KY shows he pled guilty and was found guilty of one specification of being AWOL from 
8 December 1967 to 23 February 1968.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $90.00 pay for 6 months.  His sentence was adjudged on 16 March 1968.

4.  His record contains a U.S. Army Armor Center (USAARMC) Form 854 (Extract of Records of Non-Judicial Punishment of Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 February 1969, which shows he accepted nonjudicial punishment (NJP) on 4 October 1967 for failing to go to his appointed place of duty at the time prescribed.

5.  A USAARMC Form 327 (Enlisted Personnel Confined by Civil Authorities) shows the applicant was arrested on 10 July 1968 in Cincinnati, OH and charged with burglary and grand larceny.  On 20 August 1968 he was found guilty of unspecified charges and sentenced to serve 1 to 15 years at the Lebanon Correctional Institution, OH.

6.  On 12 February 1969, the applicant’s immediate commander recommended the applicant be eliminated from the military based on his civil conviction in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) with an undesirable discharge.  The commander stated that prior to the applicant's civil conviction he:

* had been AWOL on two occasions
* served one period of confinement
* received an Article 15
* was tried by a special court-martial
* was dropped from Army rolls on two occasions

7.  On an unknown date, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-206 due to conviction by civil court.  This memorandum informed him of his right to request military counsel and submit statements on his behalf and he elected to waive his rights.
8.  On 18 February 1969, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 
635-206, due to civil conviction, and directed that the applicant be issued an Undesirable Discharge Certificate.  

9.  On 26 February 1969, he was discharged under the provisions of Army Regulation 635-206 due to a civil conviction with an Undesirable Discharge Certificate.  He completed 2 years, 1 month, and 18 days of net active service during the period under review and he had approximately 426 days of lost time. 

10.  The applicant's medical records were not available for review and there are no documents contained in his military personnel record which would indicate the applicant suffered from PTSD or any other mental health condition during his period of service.  

11.  He provides his VA statement in support of claim in which he contends he was never court-martialed and that his mental capacity upon returning from Vietnam clearly demonstrates the effects of PTSD by his actions in 1968.  In addition, he provides a conviction record transcript for Cincinnati, OH and Hamilton County.

12.  On 15 September 1977, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge.

13.  Army Regulation 635-206, then in effect, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of conviction by civil court.

	a.  Section VI (Conviction by Civil Court) stated that an individual would be considered for discharge when the individual had been initially convicted by civil authorities, or action had been taken against the individual which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year. 

	b.  The discharge or recommendation for discharge would not be accomplished or submitted until the individual had indicated in writing that he did not intend to appeal the conviction, or until the time in which an appeal may be made had expired, whichever was earlier, or if the appeal had been made, until final action had been taken thereon.

	c.  An individual discharged for conviction by a civil court normally would be furnished an Undesirable Discharge Certificate.

14.  Army Regulation 635-200 (Personnel Separations), 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.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his undesirable discharge.

2.  The evidence of record shows he accepted NJP on one occasion and he was convicted by a special court-martial.  Further, he was convicted by civil authorities of burglary and grand larceny and sentenced to serve 1 to 15 years at the Lebanon Correctional Institute in OH.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. 

3.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  Based on the foregoing, there is an insufficient basis to upgrade his discharge to an honorable discharge or to a general discharge under honorable conditions.









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)                                         AR20120021803





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ABCMR Record of Proceedings (cont)                                         AR20120021803



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