IN THE CASE OF:    

		BOARD DATE:  28 October 2014	  

		DOCKET NUMBER:  AR20140005061 


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 that his undesirable discharge be upgraded.

2.  The applicant states the confinement he received was unjust and the judge was ruled incompetent.  He did not do anything and was just in the car.  He was sentenced to 40 to 100 years in jail and when he got out he did not know he could ask for an upgrade of his discharge.

3.  The applicant provides no additional documents with his application.

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 6 February 1970.  He completed his basic training at Fort Leonard Wood, Missouri; his advanced individual training as a medical specialist at Fort Sam Houston, Texas; his airborne training at Fort Benning, Georgia; and he was transferred to Fort Bragg, North Carolina, for his first assignment on 13 August 1970.

3.  On 8 April 1971, he was convicted by a special court-martial of the wrongful possession of marijuana and lysergic acid diethylamide (LSD).  He was sentenced to confinement at hard labor for 6 months (confinement in excess of   3 months suspended for 4 months) and reduction to E-1.

4.  On 16 November 1971, he was convicted by a special court-martial of stealing a record player and speakers from another Soldier.  He was sentenced to confinement at hard labor for 6 months. 

5.  Once released from confinement the applicant was reassigned to Fort Campbell, Kentucky.  On 24 October 1973, he was convicted by civil authorities of two counts of armed robbery and was sentenced to serve an indeterminate period of time in the Ohio State Reformatory. 

6.  On 26 November 1973, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-206 for misconduct due to his conviction by civil authorities. 

7.  The applicant indicated that he did not intend to appeal his conviction and requested representation by counsel and consideration of his case by a board of officers.

8.  The applicant’s commander submitted the recommendation for discharge on 24 April 1974 and cited as the basis for his recommendation that the applicant had five periods of being absent without leave (AWOL), six periods of confinement, two court-martial convictions, one Article 15, and was dropped from the rolls two times.

9.  On 28 May 1974, a board of officers convened to consider the applicant’s case with the applicant being represented by counsel.  After reviewing the facts of his case the board found that he should be discharged for misconduct and recommended that he be issued an undesirable discharge. 

10.  On 6 June 1974, the convening authority (a major general) approved the findings and recommendation of the board of officers.

11.  Accordingly, he was discharged on 25 June 1974 under the provisions of Army Regulation 635-206 for misconduct due to conviction by civil authorities.  He had served 2 years, 6 months, and 14 days of active service and had 676 days of lost time due to AWOL and confinement.

12.  On 19 September 1977, while still incarcerated, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He offered no rationale for upgrading his discharge, and on 18 May 1979 the ADRB determined that his discharge was both proper and equitable given the circumstances of his case and voted unanimously to deny his request.

13.  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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or AWOL.  A discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states 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 applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case and properly characterize his service during the period in question.

3.  The applicant's contentions have been noted.  However, they are not supported by the evidence of record and given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently 


mitigating to warrant an upgrade of his discharge to general 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)                                         AR20140005061





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ABCMR Record of Proceedings (cont)                                         AR20140005061



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