IN THE CASE OF:
BOARD DATE: 11 July 2013
DOCKET NUMBER: AR20120023020
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 that his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions.
2. The applicant states he was young and got into trouble with the law. Consequently, he was given an unfavorable discharge.
3. The applicant provides no additional documentation.
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. On 26 November 1976, the applicant, at the age of 22 years and 10 months, enlisted in the Regular Army. He completed his initial training and was assigned for duty at Fort Hood, TX.
3. The applicant accepted nonjudicial punishment on 9 May 1977, for assaulting another Soldier with his fist and for going from his appointed place of duty without authority.
4. On 18 January 1978, the applicant was adjudged guilty in a civilian court of the theft of property having a value of $200.00 or more, but less than $10,000.00. He was sentenced to 7 years in the state penitentiary. He was subsequently ordered to such confinement for no less than 2 years, and no more than 7 years.
5. On 16 June 1978, a board of officers convened to consider the applicant for administrative discharge based on his civil conviction. The applicant and counsel were present. The president of the board ascertained that the applicant understood his right to appointed military counsel or to military counsel of his choice, if reasonably available, and/or to civilian counsel at his own expense. The applicant acknowledged his understanding of this right and chose not to avail himself of it. The board carefully considered the evidence and found the applicant undesirable for further retention in the military service due to his civilian conviction. The board recommended his discharge with issuance of a DD Form 794A (UOTHC Discharge Certificate).
6. On 6 July 1978, the appropriate authority approved the board's finding and recommendation, and directed he receive a DD Form 794A.
7. On 10 August 1978, the applicant was accordingly discharged. He had completed a total of 1 year, 1 month, and 6 days of creditable active duty service.
8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include convictions by civil authorities.
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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
2. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The applicant was almost 23 years of age when he enlisted. His satisfactory completion of initial training demonstrated his capacity to serve and shows that he was neither too young nor immature.
3. In view of the above, the applicant's request should be denied.
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) AR20120023020
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ABCMR Record of Proceedings (cont) AR20120023020
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