BOARD DATE:	  19 March 2014

		DOCKET NUMBER:  AR20130013097 


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.

2.  The applicant states he was stuck in jail but the Army was notified of the simple misdemeanor.  He believes an error occurred on behalf of the U.S. Army.

3.  The applicant provides 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 on 25 July 1974 for a period of 3 years, assignment to the 2nd Armored Division, and on-the-job training (OJT) as a mechanical helper.

3.  He completed basic training at Fort Knox, Kentucky, and was transferred to Fort Hood, Texas, to begin OJT.  He was subsequently transferred to Fort Leonard Wood, Missouri, for formal advanced individual training.

4.  On 28 January 1975, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 8 October to 24 October 1974 and from 21 December 1974 to 21 January 1975.

5.  On 2 December 1975, the applicant's commander initiated action to discharge him from the service due to conviction by civil authorities under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct).  As the basis for his recommendation, he cites that the applicant was AWOL when he was arrested in Michigan for car theft.  The charges were dropped.  He was then arrested in Florida on two occasions for breaking and entering.  He was ultimately tried and convicted and sentenced to 1 year of confinement in a civilian facility on 7 July 1975.

6.  The applicant was assigned defense counsel and a board of officers convened on 6 January 1976 to determine if the applicant should be separated from the service prior to the expiration of his term of service.  The applicant's counsel was present during the board and after considering all of the available evidence, the board found that he should not be retained and recommended his separation with an undesirable discharge.

7.  The appropriate authority (a major general) approved the findings and recommendation of the board on 29 January 1976 and directed the issuance of an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 4 February 1976 under the provisions of Army Regulation 635-206 due to conviction by civil authorities and issued an Undesirable Discharge Certificate.  He completed 5 months and 1 day of total active service and he had 405 days of lost time due to AWOL and confinement by civil authorities.  He was still in a trainee status.

9.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  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.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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 violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant's overall record of service was considered.  However, given the seriousness of his offenses, his short record of service alone is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of a general 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)                                         AR20130013097



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ABCMR Record of Proceedings (cont)                                         AR20130013097



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