IN THE CASE OF:
BOARD DATE: 28 May 2015
DOCKET NUMBER: AR20140016810
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 his undesirable discharge (UD) be upgraded.
2. The applicant states his discharge is inequitable because it was based on a civilian conviction. Other than 6 months stockade time, there were no other adverse actions. He acted rashly and irresponsibly back then. As a mature man now, he is proud of his time in the Army and proud to have served this country. He would like to erase the negativity of the type of discharge he received.
3. The applicant provides no supporting documentation.
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 8 January 1974, completed training, and was awarded the military occupational specialty 12C (Bridge Specialist).
3. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows
* 1 April 1974 for dereliction of duty
* 4 November 1974 for sleeping on guard duty
* 7 January 1975 for disobeying a direct order
4. On 26 July 1974, a special court-martial found the applicant guilty of failure to obey a lawful order and failure to go to his place of duty.
5. On 25 August 1975, the applicant was arrested by civilian authorities and charged with robbery.
6. On 17 October 1975, he was found guilty by a civilian court of robbery and sentenced to not less than 3 years or more than 20 year of confinement.
7. The applicant was discharged on 17 February 1976 with a UD under Army Regulation 635-206 for a conviction by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more. He had 1 year, 5 months, and 29 days of creditable service and 221 days of lost time.
8. On 20 May 1977, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.
9. Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct), then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination. The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time. When such separation was warranted an UD was considered appropriate.
10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the purpose and policies for enlisted personnel separations. It outlines the criteria for characterization of service as follows:
a. an honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service has met the standards of acceptable conduct and performance of duty.
b. a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's administrative separation was accomplished in compliance with applicable regulations. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
2. The applicant's service, in addition to the civilian conviction for robbery, was marred with the three NJP's and the special court-martial.
3. The mere passage of time is insufficient in and of itself to warrant a change of the applicant's discharge, especially in light of the fact that his military record is devoid of significant service.
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) AR20140016810
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