IN THE CASE OF:	  

		BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130015552 


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 to a general discharge.

2.  The applicant states he is requesting clemency due to the excessive penalty for a check worth $152.15.  

3.  The applicant provides no additional evidence.

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, in pay grade E-1, on 16 April 1979.  He held military occupational specialty 13B (cannon crewman).  He served in Turkey from 23 September 1979 through 19 September 1980.  He was promoted to pay grade E-4 on 15 September 1980.

3.  On 26 May 1981, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 1 April 1981 through 4 May 1981, and was reduced to pay grade E-3.

4.  On 30 November 1981, he was again reported AWOL and on 29 December 1981 he was dropped from the rolls of his organization. 

5.  On 25 January 1982, a DD Form 458 (Charge Sheet) was completed by the Commander, A Battery, 17th Field Artillery, Fort Sill, OK.  The applicant was charged with one specification of being AWOL on or about 30 November 1981 and remaining absent.

6.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 1 November 1985, shows an investigation revealed the applicant was apprehended in San Antonio, TX, for forgery of U.S. Treasury checks and awaiting trial.

7.  On 1 April 1986, the applicant’s company commander recommended the applicant be separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, by reason of a Federal conviction for forgery.  The company commander stated the applicant received a sentence of 3 years confinement and was confined at the Federal Correctional Institution, Anthony, TX.  He also stated the applicant had not submitted an appeal of his civil conviction.

8.  In a Letter of Notification, dated 2 April 1986, the applicant was advised of the proposed separation action and his rights.  After consulting with a case manager, he acknowledged receipt of the proposed separation.  He also acknowledged he could receive an under other than honorable conditions discharge and the results of the receipt of such a discharge.  He waived his right to counsel, stated he did not intend to appeal his civilian conviction, and elected to submit a statement in his own behalf.

9.  In a letter, dated 7 April 1986, to the Office of The Judge Advocate General, the applicant stated:

	a.  On or about 22 November 1981, he went AWOL under mitigating circumstances.  Since he did not turn himself in and was never apprehended for that offense, he believed those charges were pending.  He was recently made aware that he was still being sought by military authorities.

	b.  He was currently serving a 3-year sentence for forgery and his sentence would not be completed until 29 December 1988.  He also received a detainer from the Army, meaning at the end of his sentence they wanted to prosecute him on the aforementioned charges.  As a result of those findings he would like to expedite those matters for himself and the good of the Army.  He wanted to explain the circumstances surrounding his AWOL and the reasons he believed the statute of limitations could apply in his case.

	c.  He went AWOL due to the fact he was having intense personal problems which could not be solved with any less than his presence at his mother's home.  His mother was having extreme difficulty with her heart which kept her from doing even the basic functions by which she could attempt to live at a humane level without his physical, emotional, and financial help.  She eventually succumbed to her condition and was in God's hands.  He suffered an emotional drain, confusion, and a great loss which he understood might not be excusable to the Army, but he had to admit under the same circumstances he would not hesitate to make the same decision.

	d.  As for the statute of limitations, he went AWOL on 18 November 1981 and according to Article 43 of the UCMJ, 3 years would be the maximum time and that expired in 1984.  He was not asking to be exonerated for the offense, but would like to settle that matter so he could get on with his life without that on his mind.  If some type of discharge was available under those circumstances, he would gladly accept.

10.  On 12 May 1986, the applicant’s battalion commander recommended approval of the applicant's discharge.

11.  On 27 May 1986, the separation authority approved his discharge and directed the issuance of an under other than honorable conditions discharge.

12.  He was discharged in pay grade E-1 on 12 June 1986, under the provisions of Army Regulation 635-200, chapter 14, for Civilian Conviction.  He was credited with completing 2 years, 6 months, and 11 days of net active service and lost time from 1 April through 3 May 1981 and 30 November 1981 through 12 June 1986.  His service was characterized as under other than honorable conditions.

13.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 14-5 provides that an individual would be considered for discharge and the case initiated and processed through the chain of command to the general court-martial convening authority when initially convicted by civil authorities, or action was taken which was tantamount to a finding of guilty when the sentence by civil authorities included confinement for 6 months or more, without regard to suspension or probation.  An under other than honorable conditions certificate was normally appropriate for a member discharged under that chapter.

	b.  Paragraph 3-7b provides a general discharge was a separation from the Army under honorable condition.  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, while in an AWOL status since 1981, was convicted by a civil court in November 1985 of forgery of U.S. Treasury checks.  He was sentenced to 3 years confinement.  His company commander recommended he be separated under the provisions of Army Regulation 635-200, chapter 14, for a civilian conviction.  He acknowledged the proposed separation action and issuance of an under other than honorable conditions discharge.  In a statement, the applicant stated he wanted to settle the AWOL matter and he would gladly accept some type of discharge.  The separation authority approved his discharge and he was discharged accordingly on 12 June 1986.

2.  He did not provide any evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130015552



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ABCMR Record of Proceedings (cont)                                         AR20130015552



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