BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140012253 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states prior to enlisting in the Army he never drank alcohol or used drugs.  He trained to be an armored crewman and he was thrilled to be an airborne armor Soldier.  However, when he was assigned to Fort Bragg, NC he was assigned to a maintenance battalion.  He was not a tank repairman and he wanted to be part of an armored vehicle team to go to Germany or Vietnam.

3.  He made friends with a bad crowd at Fort Bragg and they did stupid things on dares between drinking binges and their drug use (he never used any drugs).  One night they were bored and drunk and they decided they wanted to try robbing a convenient store for more booze.  When they got to the store he was given a shotgun and they ran into the store.  He was told to take the store workers and anybody in the store to the back room.  His friends start grabbing stuff from the store and then they ran out of the store and left him behind.  Nobody got hurt during the robbery.  When the police got there he dropped his shotgun on the ground, not wanting to get into more trouble.  

4.  Since leaving the Army he went back home and lived his life in regret.  He continued to work and be a part of his community.  He has been an upstanding citizen in his city, county, state, and country  since leaving the Army.  He has worked in Dorothy's Kitchen, a homeless outreach program for local people.  He has never been charged or convicted for any felonies after leaving the Army.

5.  The applicant provides:
* his entrance physical examination and medical history
* his DD Form 4 (Enlistment Contract, Armed Forces of the United States)
* his DA Form 20 (Enlisted Qualification Record)
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* an email, dated 20 June 2014, from the House of Peace (HOP) Program Director, Franciscan Workers of Junipero Serra
* seven reference letters from employees of the Franciscan Workers of Junipero Serra
* nine certification cards showing various certifications at his place of employment

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.  On 22 January 1971, he enlisted in the Regular Army for 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11E (Armor Crewman).  On 15 July 1971, he was assigned to Company A, 782nd Maintenance Battalion at Fort Bragg, NC.

3.  On 17 March 1973, he was confined in the Fayetteville County Jail pending disposition of civil charges.

4.  On 2 April 1973, he pled guilty to armed robbery in the Superior Court Division, State of North Carolina, County of Cumberland.  He was sentenced to 12 years in the state prison.  The Court recommended he be taught a trade and when found to be qualified, further recommended that he be granted the option of serving his sentence under the work release program.

5.  The equivalent crime and maximum punishment under The Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1969 (Revised edition) would be: Article 122, robbery - dishonorable discharge, reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, and 10 years confinement.

6.  On 3 April 1973, his commander notified him he was being processed for discharge under the provisions of Army Regulation 635-206 (Personnel Separations, Discharge, Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion).  The commander advised him of his right to:

* appointment of military counsel to represent him and, in his absence, present his case before a board of officers
* submit statements in his own behalf
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

7.  On 3 April 1973, he waived all of his rights and stated he did not intend to appeal his civil conviction.

8.  On 3 April 1973, two statements from two sergeants (SGT)/E-5 were submitted.  The SGTs stated the applicant was an outstanding Soldier and they had never had any problems with him.

9.  On 20 April 1973, his commander recommended that the applicant be eliminated from the service under the provisions of Army Regulation 635-206.  He had been convicted of armed robbery and he was in civil confinement. 
10.  His intermediate commanders recommended he be issued an Undesirable Discharge Certificate.

11.  On 10 May 1973, the appropriate authority approved the recommendation for separation due to civil court conviction and directed that the applicant be issued an Undesirable Discharge Certificate.

12.  On 12 June 1973, he was discharged under the provisions of Army Regulation 635-206 due to a civil conviction.  He was issued an Undesirable Discharge Certificate.  He completed 2 years, 1 month, and 25 days of net active service that was characterized as under other than honorable conditions.  He had 86 days time lost due to confinement by civil authorities.

13.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Seven reference letters from fellow employees, the longest knowing him for 
14 years, of the Franciscan Workers of Junipero Serra attest to his:

* being trustworthy and a hard worker in the kitchen
* ability to get along with others and his great work ethic
* being a team player and believing in honesty, hard work, and care for others
* being a man of honor and caring character
* a sweet, hardworking, and friendly man
* being a man of high morals and integrity.

15.  Army Regulation 635-206, then in effect, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent entry into the service, conviction by civil court, and absence without leave or desertion.

	a.  Section VI (Conviction by Civil Court) stated that an individual was 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 was not 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.  An individual discharged for conviction by a civil court normally was furnished an Undesirable Discharge Certificate, however, an honorable or General Discharge Certificate could be furnished if the individual being discharged had been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

16.  Army Regulation 635-200 (Personnel Separations), 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.  He was discharged based on his civil conviction for armed robbery.  He was notified of his rights concerning his discharge.  He waived all of his rights and he did not submit a statement in his own behalf.

2.  All requirements of law and regulations in effect at the time were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

3.  He was apprehended by civil authorities while committing an armed robbery.  Therefore, his service is determined to be unsatisfactory.

4.  The applicant's post-service achievements and conduct were reviewed.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge.

5.  In view of the above, there is not a sufficient basis on which to base an upgrade of his 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)                                         AR20140012253



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ABCMR Record of Proceedings (cont)                                         AR20140012253



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