IN THE CASE OF:  

		BOARD DATE:  4 August 2015	  

		DOCKET NUMBER:  AR20140021438 


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 he feels his discharge should be changed because his civilian conviction was the result of his wife having overdrawn their joint bank account.  He came home on emergency leave from Vietnam because his wife filed for divorce and he wanted to save his marriage and have rights to his son.  While home on leave he was arrested for deceptive practice and sentenced to 1 year in the department of corrections.  When released, the military police took him to Fort Leonard Wood, MO, where he requested a discharge in order to get back to his family.  He was very young, 21 years old at the time, and had no idea of the long term results of his actions.  He tried to be a good and honorable Soldier but his personal life messed that up.  Over the past 40 years he has been a responsible taxpaying citizen working as a medical laboratory technologist and then owning a trucking business.  He now has cancer and prays the Board will provide him relief. 

3.  The applicant provides copies of a 1972 para-medical training course transcript, a 1974 Certificate of Registration, Medical Laboratory Technologist certificate, 1975 American Society for Medical Technology membership certificate, 1976 Associated Degree certificate, 1981 Pennsylvania State University Real Estate Law/Real Estate Appraisal Certificate, 1984 Florida real estate license, 1986 Ohio School of Career Technology transcript, 1986 Ohio School of Career Technology Real Estate Law Certificate, 1986 Ohio School of Career Technology Real Estate Principles' and Practices Certificate, 2004 Oklahoma Corporation Commission operating license, 2004 U.S. Department of Transportation Public Carrier Permit, and a 2004 Illinois Commerce Commission Public Carrier Certificate.

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 was inducted on 4 May 1966 at age 18.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 2 September 1966 a special court-martial convicted the applicant of being absent without leave (AWOL) from 1 August through 22 August 1966 while he was in a trainee status.

4.  He served in Vietnam from 8 November 1966 through 20 March 1968 as a rifleman, driver and military policeman.  While serving in Vietnam, he enlisted in the Regular Army on 7 May 1967 for a 3-year period.

5.  Documents in his official military personnel record show he had lost time as follows:  

* 1 – 22 August 1966, AWOL (during his first enlistment period)
* 17 – 18 June 1967, AWOL 
* 21 June 1967 – 12 September 1967, AWOL
* 27 April 1968 – 24 June 1968, AWOL
* 4 October 1968 – 18 January 1969, AWOL
* 21 January 1969 – 6 February 1969, AWOL
* 10 February 1969 – 29 April 1969, AWOL
* 30 April 1969 – 3 May 1970, civilian incarceration
* 6 May 1970 – 31 August 1970, AWOL

6.  On 2 July 1968 a special court-martial found the applicant guilty of AWOL for the period from 27 April 1968 through 24 June 1968.  

7.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on 26 September 1968 for failure to go to his appointed place of duty.

8.  The applicant was found guilty by a civilian court of passing a bad check and sentenced to 90 days incarceration.  A second civilian court found the applicant guilty of passing bad checks in the amount of $474.00 and sentenced the applicant to 12 months of incarceration.

9.  The documentation related to the applicant's separation action is not a matter of record except for a board of officers’ proceedings.

10.  A board of officers convened on 15 April 1970 with the applicant being represented by military counsel.  It was noted during the hearing that the applicant’s divorce was finalized and his former spouse had custody of their child.  The board recommended the applicant be separated based on his convictions by civilian authorities, multiple intentional periods of AWOL, and excessive time lost.  The board recommended the applicant receive a UD.

11.  The discharge authority approved the discharge but held the decision in abeyance until the applicant was returned to military control. 

12.  The applicant was discharged on 11 September 1970 with a UD.  He had 1 year and 8 days creditable service during this enlistment with 1 year and 3 days of prior active duty service.  He had 718 days of lost time with 117 days of lost time subsequent to his normal expiration of term of service.  

13.  On 6 August 1980, 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.  

14.  The documents provided by the applicant show the applicant completed para-medical training, medical laboratory technician training, and real estate training with certification in Florida and Ohio, and training and certification as a public carrier. 

15.  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.  When separation for civil conviction was warranted the Soldier could be separated administratively if he were afforded a review by a board of officers and the associated rights of that procedure even though the available evidence of the offense might prove insufficient to warrant conviction in a trial by court-martial.  When such separation was warranted an undesirable discharge was considered appropriate.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally 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. 

	c.  An under other than honorable conditions discharge is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

17.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  The ABCMR begins its consideration of each case with the presumption of administrative regularity with the applicant having the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a discharge upgrade has been carefully considered.  In his statement he indicated he left Vietnam to go home to his wife and child because his wife had filed for divorce and was writing bad checks.  His divorce was finalized and his spouse retained custody of their child.  The evidence of record shows that he was convicted of writing bad checks.  He did not submit evidence to support his statement that it was his former spouse who wrote the bad checks. 

2.  The applicant’s record contains the board of officers’ record of hearing.  The board of officers acknowledged that the applicant was divorced and that his former spouse had custody of their child.  The board also reviewed his civilian conviction records which included confinement of more than 1 year; his courts-martial records; Article 15 disciplinary records; and his lengthy and repeated periods of AWOL. 

3.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 21 years of age, had satisfactorily completed training, had served in Vietnam and was awarded the Combat Infantryman Badge.  His initial satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

4.  The applicant provided insufficient evidence that his post service conduct has been sufficiently meritorious in nature as to mitigate his poor conduct during his period of service that resulted in his UD.

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)                                         AR20140021438



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ABCMR Record of Proceedings (cont)                                         AR20140021438



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