IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150011968 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150011968 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150011968 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 character of service from under other than honorable conditions to under honorable conditions (general) or honorable. 2. He states the pressure and the Nation's attitude in the 1960s and 1970s contributed to his behavior during his period of service. 3. He provides his DD Form 214 (Report of Separation from Active Duty). 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 18 September 1975. 3. His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 3 June 1976 for being absent without leave (AWOL) from on or about 4 May 1976 to on or about 27 May 1976. 4. On 16 February 1977, the Chief, U.S. Army Deserter Information Point, notified the commander that the applicant was apprehended by civil authorities and confined to the Smith County Jail, Tyler, TX. 5. On 8 August 1977, the State of Texas convicted the applicant of burglary and sentenced him to five years in the penitentiary. The applicant elected not to appeal his sentence. 6. On 1 September 1977, the Personnel Officer, Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, advised the applicant of the initiation of action to separate him from service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)) for conviction by civil court. The Personnel Officer also advised the applicant of his rights. 7. On 14 September 1977, counsel advised him of the basis for the contemplated action to separate him for conviction by a civil court under the provisions of Army Regulation 635-206 and the effects and rights available to him. He waived consideration of his case by a board of officers, personal appearance before that board, and representation by a consulting counsel. He elected not to submit a statement in his own behalf. 8. On 30 September 1977, the applicant's immediate commander recommended the applicant's discharge from military service under the provisions of Army Regulation 635-206. He said the discharge was due to the applicant's recent civilian conviction for burglary. He received a sentence of 5 years of confinement for the civilian conviction of burglary and was presently in confinement at the Texas Department of Correction, Huntsville, TX. 9. On 26 October 1977, the separation authority approved the applicant's separation and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 10. On 31 October 1977, he was discharged under the provisions of Army Regulation 635-206 with a characterization of service listed as under other than honorable conditions. He completed 1 year, 4 months, and 16 days of creditable active service with 272 days listed as lost time. His record does not show that he received any personal decorations. REFERENCES: 1. 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). The regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or had action 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 individual discharged for conviction by civil court normally would be furnished an undesirable discharge certificate except that 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. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates, and states: a. 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. b. 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. DISCUSSION: 1. The evidence of record shows the applicant convicted of burglary by a civil court and sentenced to five years of confinement. Army Regulation 635-206 provided for the elimination of enlisted personnel for misconduct when a Soldier receives a civil conviction. Therefore, it appears he was properly and equitably discharged in accordance with the regulations in effect at the time. 2. Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. His service did not meet the criteria for a general or an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011968 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011968 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2