IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140016669 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states, in effect:

* he was in jail; but he was not convicted
* he was discharged before the charges were dismissed
* he requests information concerning benefits; he is a homeless Veteran

3.  The applicant provides no additional documentary evidence.  

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 U.S. Army Reserve (USAR) on 23 May 1979.  On 25 May 1979, he entered active duty to complete initial training.  He successfully completed basic combat training at Fort Jackson, SC.  On or about 17 July 1979, he was sent to Fort Lee, VA to attend advanced individual training (AIT) for military occupational specialty 76D (Army Materiel Supply Specialist); he never finished AIT.

3.  He had incidents of misconduct between August 1979 and September 1979.

	a.  On 17 August 1979, the applicant was counseled by his first sergeant for having written a bad check to the Fort Lee, VA Airline Ticket Office.

	b.  On 21 August 1979, the applicant was notified by the Army and Air Force Exchange Service he had rendered a dishonored check on 10 August 1979.

	c.  On 7 September 1979, the applicant was counseled by his noncommissioned officer in charge for sleeping in class.

	d.  On 17 September 1979, the Chief of the Basic Supply Training Division at Fort Lee requested the applicant be relieved from AIT training.  The basis for this request was the applicant's negative attitude and his statement during several counseling sessions that he wanted to be relieved from his AIT course.  Additionally, the applicant was absent on several occasions, was found to be sleeping in class, and was disrespectful toward noncommissioned officers.  The request was approved on 21 September 1979.

	e.  On 24 September 1979, the applicant was counseled by his commander for having been absent without leave (AWOL) from 0600 hours, 21 September 1979 to 1105 hours, 23 September 1979.  He was also counseled for failing to be at his appointed place of duty on 24 September 1979.

4.  On 28 September 1979, the applicant was reported in an AWOL status, and remained absent until 1700 hours on 12 October 1979.  He was again reported in an AWOL status as of 1730 hours, 12 October 1979.  He was dropped from the rolls effective 2400 hours, 12 October 1979.  

5.  The applicant was shown as having returned to military control on 18 December 1979, and was then placed in civil confinement effective 19 December 1979. 

6.  In a letter, dated 22 February 1980, addressed to the Office of the Adjutant General (OAG), U.S. Army Administration Center, from the Commonwealth of Virginia Department of Corrections, the Army was notified the applicant had been convicted of three counts of forging checks in Atlanta, GA.  The Virginia Department of Corrections was conducting a background investigation and attempting to confirm the applicant was a member of the USAR.  Additionally, information as to enlistment dates and any court-martial convictions was requested.  On 30 April 1980, the OAG informed the Virginia Department of Corrections authorization by the applicant was required for the release of information.  On 5 May 1980, the Virginia Department of Corrections provided a release signed by the applicant.

7.  The applicant's discharge packet is not available in his official military personnel file (OMPF), however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his commander initiated separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct).  As a result, the applicant was discharged on 28 August 1980.  

8.  His DD Form 214 shows:

	a.  He completed 3 months and 28 days of net active creditable service, with 336 days of lost time.

	b.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) is blank.

	c.  The character of service is shown as under other than honorable conditions.  The separation authority is Army Regulation 635-200, chapter 14 and the narrative reason is misconduct - conviction by civil court.

9.  His records contain a DA Form 200 (Automated Data Processing Data Transmittal Record) which includes the following information in item 19 (Special Instructions):

* date of apprehension, 18 December 1979
* place of confinement, Petersburg City Jail, Petersburg, VA
* charges against the applicant were three felony incidents of forgery
* sentence was confinement for 12 months and a fine of $10.00 plus cost of conviction

10.  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. 


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

   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.

	c.  Chapter 14 (Separation for Misconduct), Section III (Conviction by Civil Court), in effect at the time, states a Soldier will be considered for discharge and his case initiated and processed through the chain of command to the general court-martial convening authority when it is determined that he or she has been initially convicted by civil authorities, or action taken which is tantamount to a finding of guilty, of an offense under the Uniform Code of Military Justice (UCMJ) for which the maximum penalty includes death or confinement for one year or more.  An under other than honorable conditions discharge is normally considered the appropriate characterization of service.

12.  The Manual for Courts-Martial, U.S., provides guidance for the implementation and exercise of the UCMJ.  In appendix 12 it shows the offense of forgery, under Article 123, carries a maximum punishment of a dishonorable discharge/bad conduct discharge, 5 years confinement, and total forfeitures of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge contending, although he was in jail, he was not convicted.  The charges were dismissed.  He offers no evidence to support his contentions.

2.  The evidence available in his OMPF clearly shows he was convicted by a civil court and sentenced to confinement for 12 months.

	a.  Records indicate he was convicted of three felony counts of forgery.

	b.  To be discharged for a civil conviction under the provisions of chapter 14, Army Regulation 635-200, the maximum sentence of the comparable offense under the UCMJ must include at least 12 months of confinement.

	c.  Article 123 of the UCMJ shows the maximum sentence for forgery includes 5 years of confinement.  Conviction of three counts would result in a possible maximum punishment of 15 years confinement.

3.  The applicant's discharge packet is not available for review, however, there is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  Based upon the foregoing, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Accordingly, there is an insufficient basis upon which to grant the applicant's request for relief.

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)                                         AR20140016669



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ABCMR Record of Proceedings (cont)                                         AR20140016669



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