IN THE CASE OF:	   

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130015622 


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 would like his discharge upgraded in order to be eligible for benefits from the Department of Veterans Affairs (VA). 

3.  The applicant provides multiple character reference letters. 

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's records show he enlisted in the Regular Army on 2 June 1971. He completed basic combat training and he was subsequently assigned to Fort Eustis, VA, for completion of advanced individual training. 

3.  On 25 September 1971, the applicant was arrested by civil authorities in Newport News, VA, for burglary and grand larceny.  He remained in civil custody at Newport News, VA and as of 19 April 1972, his case had not been brought to trial.  But, he was scheduled to be arraigned on 8 May 1972. 

4.  On 5 June 1972, he was convicted by the Hustings Court of the City of Newport News, VA, for grand larceny and he was sentenced to imprisonment in the penitentiary House of the Commonwealth of Virginia for a period of 5 years, 3 years of which would be suspended. 

5.  On 17 August 1972, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for his civil conviction.  The immediate commander recommended an Undesirable Discharge Certificate.  

6.  On 17 August 1972, the applicant acknowledged receipt of the notification of separation action.  He later consulted with counsel and he was advised of the basis for the contemplated separation due to conviction by civil court, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers and appearance before a board of officers.  He elected not to submit a statement on his own behalf and indicated he did not intend to appeal his conviction.  He further acknowledged he understood that:

	a.  He could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him. 

	b.  As a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.

7.  On 4 October 1972, his immediate commander recommended his appearance before a board of officers to be convened under the provisions of Army Regulation 635-206 for the purpose of determining whether he should be discharged due to his conviction by civil court.  His intermediate and senior commander recommended approval. 
8.  On 12 December 1972, a board of officers convened at Fort Eustis, VA.  The board found the applicant was undesirable for further retention in the military service because of his conviction by civil court and recommended his discharge from the service with an undesirable discharge. 

9.  The convening/separation authority approved the board of officers' findings and recommendations and ordered the applicant discharged under the provisions of Army Regulation 635-206 for willful misconduct by reason of civil conviction and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 12 January 1973. 

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-206 with an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate.  He completed 7 months and 20 days of active service (during the period under review) and he had 351 days of lost time.  

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

12.  The applicant provides multiple character reference letters and/or letters of support for individuals (neighbors/friends) who describe him as a family man who is very active in the community and church. 

13.  Army Regulation 635-206, paragraph 24 provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the 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 evidence of record shows the applicant was convicted by a civilian court of grand larceny.  He was sentenced to 5 years of imprisonment, 3 years of which was suspended.  Accordingly, his chain of command initiated separation action against him and he was accordingly notified.  He requested consideration of his case by a board of officers.  Accordingly, a board of officers convened and found the applicant was undesirable for further retention in the military service because of his conviction by civil court and recommended his discharge from the service with an undesirable discharge. 

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to a general or 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)                                         AR20130015622





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ABCMR Record of Proceedings (cont)                                         AR20130015622



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