BOARD DATE: 2 December 2014
DOCKET NUMBER: AR20140004936
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:
a. an upgrade of his general discharge under honorable conditions to honorable; and
b. correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his last name as xxxn.
2. The applicant states:
* his last name is xxxn
* he should have an honorable discharge
3. The applicant provides:
* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* Department of Veterans Affairs identification card
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 12 April 1966 for 3 years. He completed his training and was awarded military occupational specialty 72C (central office teletype switchboard operator).
3. In January 1967, nonjudicial punishment was imposed against him for forcibly entering a building by prying off the door latch with a screwdriver.
4. His records show he was confined from 3 through 8 March 1967.
5. On 9 March 1967, he was convicted by the U.S. District Court, Fayetteville, NC, for breaking and entering and carrying a concealed weapon. He was sentenced to confinement for 15 months, but his sentence was suspended for a period of 2 years.
6. On 23 March 1967, he was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations Discharge Misconduct), due to conviction by a civil court.
7. He consulted with counsel, waived his rights, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued to him. He also elected not to submit a statement in his own behalf.
8. On 6 April 1967, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
9. He was discharged under honorable conditions (general) on 18 April 1967 under the provisions of Army Regulation 635-206 due to conviction by a civil court. He completed 1 year and 1 day of total active service with 6 days of lost time.
10. His DD Form 214 shows his last name as xxxns. However, he provided a DD Form 215, dated 4 December 1970, which shows his last name was amended to read xxxn. Therefore, this portion of his request will not be discussed further in this Record of Proceedings. A copy of the DD Form 215 will be provided to him.
11. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.
12. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). It provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action was taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. An undesirable discharge was normally considered appropriate.
13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets for the basic policy for the separation of enlisted personnel. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's record of service included one nonjudicial punishment and 6 days of lost time. He also committed a serious civil offense while in the Army for which he was convicted. As a result, his record of service was below that meriting a fully honorable discharge.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
3. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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) AR20140004936
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ABCMR Record of Proceedings (cont) AR20140004936
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