IN THE CASE OF:	  BARNES, HOMER L. JR.

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130016618 


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 honorable.

2.  The applicant states he was not knowledgeable or prepared at the time to make a competent decision.

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's records, though somewhat incomplete, show he enlisted in the Regular Army on 30 July 1968.  He completed training as a light weapons infantryman and was transferred to Vietnam on 7 March 1969.

3.  On 5 September 1969, he was admitted to the 93d Evacuation Hospital in Long Binh, Vietnam, for a seizure disorder.  He was then transferred to the U.S. Army Hospital at Camp Zama, Japan.  On 7 November 1969, he was transferred to Fort Jackson, South Carolina, where he reenlisted on 15 November 1969 for a period of 6 years.

4.  On 19 May 1970, nonjudicial punishment (NJP) was imposed against him for being disrespectful in language toward a superior noncommissioned officer.

5. On 19 August 1970, he was reclassified as a supply specialist and he was transferred to Vietnam for duty as a supply specialist on 18 November 1970.

6.  On 22 January 1971, NJP was imposed against him for failing to go to his place of duty.

7.  He departed Vietnam on 7 November 1971 and was transferred to Fort Benning, Georgia.

8.  The applicant was absent without leave (AWOL) on 15 January 1972 and remained absent in desertion until he was returned to military control at Fort Gordon, Georgia, on 24 March 1972.  NJP was imposed against him on 18 April 1972 for this absence.

9.  The applicant was transferred to Fort Jackson, South Carolina, for duty as a supply clerk on 2 May 1972.

10.  On 4 May 1972, he was AWOL and remained absent in desertion until he was arrested by civil authorities in Atlanta, Georgia, on 22 December 1972 and was charged with armed robbery and kidnapping.  He remained in the custody of civil authorities.

11.  The applicant was convicted and sentenced to serve three 40-year sentences on the robbery charge and not less than 2 years or more than 10 years on the kidnapping charge, to run consecutively with the robbery charge.

12.  On 10 March 1975, the Tennessee Supreme Court reversed and dismissed the kidnapping conviction on appeal.

13.  On 12 March 1975, the applicant was notified that action was being taken to discharge him from the Army for misconduct – conviction by civil authorities – under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct).

14.  The complete facts and circumstances surrounding the applicant's administrative discharge are not present in the available records; however, his records show the appropriate authority (a major general) approved the recommendation for discharge on 26 March 1975 and directed the issuance of an Undesirable Discharge Certificate.

15.  Accordingly, the applicant was discharged under other than honorable conditions on 2 April 1975 under the provisions of Army Regulation 635-206 due to misconduct – conviction by civil authorities.  He completed 5 years, 6 months, and 2 days of total active service and accrued 421 days of lost time due to AWOL and confinement by civil authorities.

16.  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.

17.  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.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority 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.  In the absence of evidence to show otherwise, it must be presumed that 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 and contentions were considered.  He provides no evidence to show he could not make a competent decision at any time.  Given the seriousness of his offenses and his repeated and extensive absences, they are not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of 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 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)                                         AR20130016618



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ABCMR Record of Proceedings (cont)                                         AR20130016618



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