IN THE CASE OF:	  

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140005301 


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 discharge upgrade.

2.  The applicant states he thought he would receive an under honorable conditions discharge.

3.  The applicant provides four letters of support.

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 November 1972.  His records show he completed basic combat and advanced individual training, and was awarded military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was private first class/E-3.
3.  Available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 5 occasions:

* on 12 April 1973, for two counts of disobeying a lawful order from a noncommissioned officer
* on 8 May 1973, for disrespectful language toward a noncommissioned officer
* on 5 April 1974, for disobeying a lawful order from a noncommissioned officer
* on 17 May 1974, for two counts of disobeying a lawful order and one count of communicating a threat to a noncommissioned officer
* on 5 June 1974, for being disrespectful toward a commissioned officer and disobeying a lawful order from a commissioned officer

4.  Available records show the applicant was convicted, on 27 November 1974, in a civilian court of rape by threat and force, on 4 June 1974; and burglary with intent to commit rape, on 1 July 1974.  He was remanded to prison.

5.  On 3 June 1976, the applicant's unit commander requested the applicant be eliminated under the provisions of Army Regulation 635-206 (Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) because of his conviction by a civilian court.

6.  On 8 June 1976, the applicant's case was referred for consideration by a Board of Officers.  The applicant was notified of his unit's intent to conduct a Board of Officers.  He was advised of his right to counsel and the ability to have witnesses appear on his behalf.  

7.  On 2 May 1976, the applicant requested consideration of his case by a Board of Officers and representation by counsel.

8.  The Board of Officers was convened, on 10 August 1976, and the applicant was represented by counsel.  The applicant submitted a self-authored statement in his own behalf which essentially expressed his desire to be found worthy of a general discharge; his crimes resulted from heavy drug use; that he joined the Army to serve his country; and he intended to become a counselor to help young people.  

9.  The board found the applicant was legally convicted and recommended an undesirable discharge. 

10.  On 13 September 1976, the recommendations by the Board of Officers were approved by the approval authority.  Reduction to the rank of private/E-1 and the issuance of an Undesirable Discharge Certificate were directed.

11.  The applicant's DD Form 214 (Report of Separation from Active Duty), dated 12 May 1977, shows in item 9e (Character of Service) "under other than honorable conditions."

12.  The applicant provides four letters of support which essentially state the applicant is kind-hearted, God-fearing, hardworking, and well-liked in the community; often preparing lunches and cleaning churches for no pay.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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.

15.  Army Regulation 635-206, Section VI, prescribes procedures for separating members who have been convicted by a civil court.  Specific categories include conviction for an offense for which the maximum penalty is death or confinement for in excess of 1 year; being convicted for an offense involving moral turpitude, regardless of the sentence received; and adjudication as a juvenile offender.  An Undesirable Discharge Certificate is normally appropriate for a Soldier discharged under this chapter.  






DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant's record reflects a history of indiscipline, which includes conviction by a civil court of two serious offenses -- rape by threat and force and burglary with intent to commit rape -- and he was subsequently incarcerated.  His chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was accordingly discharged due to this misconduct.

3.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel; therefore, there is no basis to grant the relief requested.  

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)                                         AR20140005301



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ABCMR Record of Proceedings (cont)                                         AR20140005301



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