IN THE CASE OF:	   

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130014075 


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 upgrade of his undesirable discharge to honorable.

2.  The applicant states:

	a.  he performed great in basic and advanced individual training and he did a tour in Vietnam.

	b.  he has been told by the Department of Veterans Affairs medical staff he has prostate cancer as a result of exposure to Agent Orange in Vietnam.  His health is poor.

	c.  when he returned from Vietnam it was very hard for him to enter society and he made some bad choices which resulted in him receiving an other than honorable conditions discharge.  His discharge prevents him from receiving disability compensation from the 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 was inducted into the Army of the United States on 
27 November 1967.  He completed his training and was awarded military occupational specialty 94B (food service specialist).  He served in Vietnam from 4 May 1968 to 29 April 1969.

3.  On 17 June 1969, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 12 June 1969 to 17 June 1969.

4.  On 28 January 1970, he was convicted by a special court-martial of being AWOL from 18 August 1969 to 19 January 1970.  He was sentenced to forfeit $50.00 pay per month for 3 months, to perform extra duty for 1 month, to be reduced to specialist four/E-4, to be restricted to the limits of Special Processing Detachment for 2 months, and to be reprimanded.   

5.  Records show that on 8 March 1970 he was arrested by civilian authorities and charged with aggravated assault.  He was released from jail on 10 April 1970 and directed to return to his unit but failed to do so.  

6.  He went AWOL on 10 April 1970.

7.  Records show:

	a.  on 18 April 1971, while in an AWOL status, he was charged with the offense of passing a forged instrument and sentenced to 3 years in confinement.

	b.  on 20 April 1973, after he was released from confinement, he was charged with the offense of robbery.  On 10 April 1974, he was sentenced to 25 years.

8.  In September 1975, he was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) due to conviction by a civil court.  

9.  On 11 September 1975, he indicated he did not intend to appeal his conviction.  
10.  The separation authority's action is not available.   However, discharge orders show he was discharged while in the hands of civil authorities on 
26 January 1976.

11.  He was discharged on 26 January 1976 under the provisions of Army Regulation 635-206 due to conviction by a civil court with an Undesirable Discharge Certificate.  He completed 1 year, 10 months, and 3 days of total active service with 2310 days of time lost.

12.  On 27 June 1977, the Army Discharge Review Board denied his request for a discharge upgrade.

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  It provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets for the basic policy 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's contentions were carefully considered.  However, his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He signed a statement indicating that he did not intend to appeal his civil conviction.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

2.  His record of service included one NJP, one special court-martial conviction, and 2310 days of lost time.  He also committed serious civil offenses while in the Army.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or 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 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)                                         AR20130014075





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ABCMR Record of Proceedings (cont)                                         AR20130014075



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