BOARD DATE:  11 June 2015

		DOCKET NUMBER:  AR20140019108 


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 general discharge.

2.  The applicant states he was the oldest of seven children.  He went to school to the 8th grade and he had to stay and take care of his brothers.

3.  The applicant provides copies of –

* DD Form 4 (Enlistment Record - Armed Forces of the United States)
* DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 22 June 1967
* DA Form 2627-1, dated 7 July 1967
* DA Form 2627-1, dated 1 September 1967
* DA Form 20B (Insert Sheet to DA Form 20 (Record of Court-Martial Conviction))
* Special Court-Martial orders
* DA Form 20 (Enlisted Qualification Record)
* DD Form 214 (Armed Forces of the United Stated Report of Transfer or Discharge)

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 1 March 1967.  He did not complete training and was not awarded a military occupational specialty.  

3.  His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on –

* 22 June 1967 for failing to go to his appointed place of duty
* 7 July 1967 for failing to go at the prescribed time to his appointed place of duty
* 1 September 1967 for wrongfully appropriating the property of another Soldier

4.  On 30 August 1967, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 9 August to 11 August 1967 and one specification of feigning illness for the purposes of avoiding his duty as a student.  The Court sentenced him to hard labor without confinement for 1 month, reduction to the lowest enlisted grade, and a forfeiture of $64.00 pay.  The convening authority approved his sentence on 30 August 1967.

5.  On 22 January 1968, he was convicted by the Circuit Court of Roane County, West Virginia, of forgery and sentenced to 1 to 2 years at the West Virginia Forestry Camp for Boys, Davis, West Virginia.

6.  On 10 April 1968, the applicant's immediate commander forwarded the applicant a letter notifying him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) by reason of conviction by a civil court with an Undesirable Discharge Certificate.  The commander's letter further informed the applicant that he had the opportunity to –

* request appointment of military counsel
* submit statements on his own behalf
* waive these rights in writing

7.  The applicant waived his rights as explained in the commander's letter. 

8.  On 28 June 1968, his commander initiated separation action against him under the provisions of Army Regulation 635-206 by reason of civil conviction.  

9.  On 6 September 1968, the separation authority approved the applicant's discharge action and directed the applicant be furnished a General Discharge Certificate.  

10.  The applicant was accordingly discharged on 18 September 1968.  His DD Form 214 shows he completed a total of 9 months and 1 day of total active service with 293 days of lost time.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action was taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged by reason of civil conviction.  He was convicted by a civilian court for forgery and he was sentenced to 1 to 2 years at the West Virginia Forestry Camp for Boys.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and notified him of this action.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  His service was marred by misconduct as evidenced by three instances of NJP and a special court-martial conviction, in addition to the civilian conviction.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to honorable.

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)                                         AR20120002063



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ABCMR Record of Proceedings (cont)                                         AR20140019108



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