IN THE CASE OF:  	  

		BOARD DATE:  6 January 2015	  

		DOCKET NUMBER:  AR20140007956 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states he was not properly advised at the time as to what his options were.  He states that according to Article 32, Uniform Code of Military Justice (UCMJ), there should have been an investigation and he should have been afforded counsel.  Neither took place.

3.  The applicant provides:

* a one-page printout about requesting discharge in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
* DD Form 214 (Report of Separation from Active Duty)

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.  He enlisted in the Regular Army on 1 March 1967.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained was private /pay grade E-2.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 3 October 1967 to 17 April 1972.

4.  On 18 August 1972, the Fulton Superior Court, GA, sentenced the applicant to be confined at labor for the full term of 4 years.  A U.S. Department of Justice - Federal Bureau of Investigation letter, dated 27 October 1972, states the applicant was presently serving a 4-year sentence at Lowndes Correctional Institution, Valdosta, GA for the offense of possession of narcotics.  

5.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 1 November 1973, states the applicant was absent from 21 May 1972 to 19 October 1973 when he was returned to military control.  The remarks section states he was paroled from Lowndes Correctional Institution, Valdosta, GA, after serving 16 months of a 4-year sentence.

6.  On 4 December 1973, the Personnel Control Facility commander at Fort Benning, GA stated in a memorandum that this memorandum was to advise the applicant that he was being recommended for separation from the U.S. Army by reason of conviction by civil court under the provisions of Army Regulation 635-206 (Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)).  He was further advised of his right to a:

   a.  hearing before a board of officers, or
   
   b.  to waive this right and submit statements in his own behalf, or
   
   c.  to waive both of the above rights;
   
   d.  to be represented by counsel;
   
   e.  to request by name, military counsel to represent him, if reasonably available;
   


   f.  to employ civilian counsel at no expense to the U.S. Government; and
   
   g.  to withdraw his waiver of rights in a, b, and c above any time prior to the date the discharge authority orders, directs, or approves his discharge and request that his case be presented before a board of officers.

7.  On 6 December 1973, the applicant consulted with counsel who advised him of the basis for the contemplated action to accomplish his separation under the provisions of Army Regulation 635-206.  After consulting with counsel, he acknowledged that he understood that as a result of issuance of a discharge under conditions other than honorable, he could be deprived of his rights and benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.  He waived his rights.

8.  On 6 December 1973, he signed a sworn written statement that he did not intend to appeal his conviction by the Fulton County Superior Court.

9.  On 22 January 1974, the Personnel Control Facility commander stated that the applicant's duty status from 3 October 1967 to 18 April 1972 and from 21 May 1972 to 19 October 1973 was AWOL.  He requested dismissal of the AWOL charges against the applicant in order to expedite the elimination of the applicant.  He stated the applicant would be discharged under the provisions of Army Regulation 635-206 for misconduct due to civil conviction.

10.  On 22 January 1974, the Personnel Control Facility commander recommended discharge of the applicant under the provisions of paragraph 33a, Army Regulation 635-206.  He recommended the applicant be given an undesirable discharge.

11.  On 14 February 1974, the appropriate authority approved the recommendation that the applicant be discharged from the service because of conviction by a civil court under the provisions of Army Regulation 635-206 and directed that the applicant be issued an Undesirable Discharge Certificate.

12.  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 he had been initially convicted by civil authorities, 
or action had been taken against him which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ 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.  There is no requirement for an investigation in conjunction with elimination proceedings for misconduct by reason of conviction by a civil court.

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

13.  There is no indication he 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, 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 contends there should have been an investigation.  However, given that he was convicted and sentenced by a civil court and not court-martialed, there was no requirement for an investigation.

2.  The Fulton Superior Court, GA, sentenced the applicant to be confined for 4 years for the offense of possession of narcotics.  He was paroled after serving 16 months of the 4-year sentence and returned to military control.

3.  On 4 December 1973, the Personnel Control Facility commander at Fort Benning, GA advised the applicant that he was being recommended for separation from the U.S. Army by reason of conviction by civil court under the provisions of Army Regulation 635-206.  He advised him of his rights.

4.  Evidence shows the applicant consulted with counsel who advised him of the basis for the contemplated action to accomplish his separation under the provisions of Army Regulation 635-206.  He signed a sworn written statement that he did not intend to appeal his civil conviction.

5.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.
 
6.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  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 separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

7.  Based on the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20140007956



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ABCMR Record of Proceedings (cont)                                         AR20140007956



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