IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013
	
		DOCKET NUMBER:  AR20130004302


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 under other than honorable conditions discharge.

2.  The applicant states he did not initiate the action that resulted in his discharge.  He states he was provoked into the incident that occurred.  He fully acknowledges the gravity of the situation and sincerely regrets his actions; however, he was only 20 years old at the time.

3.  The applicant provides 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.  On 17 August 1957, the applicant was born. 

3.  On 28 July 1976, at the age of 18, he was indicted by the Grand Jury of Bexar County, in the State of Texas, for the offense of unauthorized use of a vehicle and theft.

4.  On 2 August 1976, the applicant enlisted in the Regular Army.  At the time of his enlistment, he did not reveal he had been charged with auto theft.  

5.  He entered active duty at Fort Bliss, TX, for the purpose of completing his initial entry training.  His record indicates he did not complete his initial entry training.

6.  On 13 December 1976, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, without authority, from on or about 12 December 1976 through on or about 13 December 1976.

7.  On or about 3 January 1977, he was reported by his unit as absent without leave (AWOL).  He remained AWOL until he surrendered to military authorities on or about 7 January 1977.

8.  On 7 January 1977, he accepted NJP, under the provisions of Article 15 of the UCMJ, for absenting himself from his unit, without authority, from on or about      3 January 1977 through on or about 7 January 1977.

9.  On 12 January 1977, he was confined in the hands of civil authorities, pending extradition to San Antonio, TX, to face the charge for which he was indicted by the Grand Jury of Bexar County, in the State of Texas (auto theft), as well as a new charge of bond jumping.

10.  On 25 April 1977, he was convicted of the charges and placed on probation for a 3-year period, beginning on 7 April 1977.  He was returned to military control at Fort Bliss, TX.

11.  On 2 May 1977, he accepted NJP, under the provisions of Article 15 of the UCMJ, for failing to be, at the prescribed time, at his appointed place of duty, on or about 29 April 1977.

12.  On 27 May 1977, his commander notified him that he was beginning discharge proceedings against him, to eliminate him from the Army under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), based on his conviction by a civil court.  
13.  On 27 May 1977, the applicant acknowledged receipt of the notification memorandum and waived representation by counsel and consideration of his case by, and personal appearance before, a board of officers.  He further elected not to submit statements in his own behalf.

14.  On 6 June 1977, his commander recommended his elimination from the Army under the provisions of Army Regulation 635-206, based on his conviction by a civil court.

15.  On 13 June 1977, the separation authority approved his discharge from the Army under the provisions of Army Regulation 635-206 and directed he receive an Under Other than Honorable Conditions Discharge Certificate.

16.  On 22 June 1977, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions discharge. 

17.  On or about 2 April 1979, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

18.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  

19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides the basic 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 applicant was convicted by a civilian court of theft and jumping bail.  He was sentenced to probation for a 3-year term.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  

2.  The applicant was 18 years of age at the time of his indictment and enlistment; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available record, and the applicant has not provided sufficient evidence, that shows his acts of indiscipline were the result of his age.

3.  His actions at the time clearly brought discredit upon himself and the Army.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is entitled to neither an under honorable conditions (general) discharge nor 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)                                         AR20110024663



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004302



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1