IN THE CASE OF:    

		BOARD DATE:  30 September 2014  	  

		DOCKET NUMBER:  AR20140002858 


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 is having medical issues and without health insurance he cannot get his issues resolved.  He is homeless and has no source of income.  He further states this is the first time he has requested an upgrade of his discharge which occurred over 37 years ago.

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 on 5 June 1975.
3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 3 December 1975 for absenting himself from his place of duty from 20 to 25 November 1975.  

4.  On 2 May 1977, his commander recommended the applicant be required to appear before a board of officers convened under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) to determine whether he should be discharged before the expiration of his term of service.

   a.  The discharge was recommended due to recent civilian convictions for two counts of unauthorized use of a motor-propelled vehicle and escape and burglary with intent to commit theft.

   b.  On 3 July 1976, the applicant escaped from Chambers County Jail, Beaumont, TX, where he was awaiting trial for unauthorized use of a motor-propelled vehicle.  The applicant was again apprehended by civilian authorities on 6 July 1976 and charged with two counts of unauthorized use of a motor-propelled vehicle and escape and burglary with intent to commit theft.  The applicant was subsequently sentenced to not less than two nor more than five years of confinement for each charge.  The applicant was confined in the Texas Department of Correction, Coffield Unit, Tennessee Colony, TX. 

5.  On 1 April 1977, the applicant was notified that action had been initiated to effect his discharge from the service for conviction by civil court.

6.  On 11 April 1977, the applicant acknowledged he had been notified of the pending separation action against him and that he had been advised by counsel of the basis for the contemplated separation action.  He requested consideration of his case by a board of officers, waived a personal appearance before a board of officers, waived representation by military or civilian counsel, and elected not to submit statements in his own behalf.

7.  He acknowledged he understood in the event of the issuance of an under other than honorable conditions discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.

8.  On 1 June 1977, a board of officers convened at Fort Sill, OK.  The applicant was incarcerated at the time of the board and he did not request representation by counsel.  The board found sufficient evidence to support his elimination from the Army under the provisions of Army Regulation 635-206 with the issuance of an under other than honorable conditions discharge.  Accordingly, he was discharged on 30 June 1977. 

9.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-206, for misconduct - conviction by civil court with an under other than honorable conditions character of service.  He had completed a total of 8 months and 1 day of creditable active military service and he had 513 days of lost time.

10.  There is no evidence in his records showing he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It provided, in pertinent part, that members convicted by civil authorities would be considered for discharge.  

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides the basic 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.  On 3 July 1976, the applicant escaped from Chambers County Jail, Beaumont, TX, where he was awaiting trial for unauthorized use of a motor-propelled vehicle.  On 6 July 1976, the applicant was again apprehended by civilian authorities and charged with two counts of unauthorized use of a motor-propelled vehicle and escape and burglary with intent to commit theft.  The applicant was subsequently sentenced to not less than two nor more than five years of confinement for each charge.  
2.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  

3.  While the applicant's post-service issues are unfortunate, it is an insufficient basis for upgrading a discharge.  His actions at the time clearly brought discredit upon himself and the Army.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an under honorable conditions (general) discharge 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)                                         AR20140002858



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ABCMR Record of Proceedings (cont)                                         AR20140002858



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