IN THE CASE OF:	  

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130022273 


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 (under honorable conditions).

2.  The applicant states, in effect, that his undesirable discharge was severe for his offense because he was simply defending himself from a personal attack by two people who were much larger than he was.  The pistol was only meant as a bluff but when one attacker attempted to take the pistol he accidently shot him in the leg.  He was arrested for assault and served 3 years.  He was only 
18 years old so he accepted his sentence but believes that if all the facts had been presented he could have gotten off with self-defense.

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.  His records show he enlisted in the Regular Army on 24 September 1971 and he failed to complete his initial training.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from the 4th Student Battalion (Airborne), Training Support Battalion, U.S. Army Infantry School, Fort Benning, GA for the following periods:

* 21 December 1971- 23 April 1972 (AWOL) 154 days
* 4 May - 9 November 1972 (AWOL/Dropped from Army Rolls) 190 days

4.  The applicant was apprehended by civil authorities on 29 May 1972 for aggravated assault and a probation violation in Warner Robbins, GA.

5.  On 22 June 1972, in the Superior Court of Houston County, GA, the applicant pled guilty to the charge of aggravated assault and he received a sentence to serve 3 years in the penitentiary or other place or places as directed.

6.  On 9 November 1972, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) due to conviction by civil court with an undesirable discharge.  This memorandum informed him of his right to request military counsel and submit statements on his behalf and he elected to waive his rights.  The applicant also indicated that he did not intend to appeal his civil conviction.

7.  On 10 January 1973, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-206, due to civil conviction, and directed that the applicant be issued an Undesirable Discharge Certificate.

8.  On 29 January 1973, he was discharged under the provisions of Army Regulation 635-206 due to a civil conviction with an Undesirable Discharge Certificate.  He completed 3 months and 2 days of net active and he had approximately 400 days of lost time.

9.  There is no indication in his records that he petitioned 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, then in effect, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of conviction by civil court.

	a.  Section VI (Conviction by Civil Court) stated that an individual would be considered for discharge when the individual had been initially convicted by civil authorities, or action had been taken against the individual which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.

	b.  The discharge or recommendation for discharge would not be accomplished or submitted until the individual had indicated in writing that he did not intend to appeal the conviction, or until the time in which an appeal may be made had expired, whichever was earlier, or if the appeal had been made, until final action had been taken thereon.

	c.  An individual discharged for conviction by a civil court normally would be furnished an Undesirable Discharge Certificate.

11.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  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 requests an upgrade of his undesirable discharge.

2.  The applicant contends that he acted in self-defense; however, the available record shows he pled guilty and was convicted by civil authorities of aggravated assault resulting in a 3 year sentence to confinement in a civilian facility.  In addition, he had over 150 days of lost time prior to his civil conviction.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

3.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  The available records contain no indication of procedural or other errors that would have jeopardized his rights and the type of discharge that he received is not severe based on his record of service.

4.  Based on the foregoing, there is an insufficient basis to upgrade his discharge to an honorable or general discharge under honorable conditions.

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)                                         AR20130022273



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130022273



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1