BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20150017313 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 BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20150017313 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. BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20150017313 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, in effect, correction of his military records by upgrading his under other than honorable conditions characterization of service to uncharacterized. 2. The applicant states he is requesting a change of his characterization of service because he has been a law abiding citizen since his discharge. He got in with the wrong crowd. He has married and raised a family. He has not been in any trouble with the law. He has made a better life. He would appreciate a change in his discharge. 3. The applicant provides no additional 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. On 12 September 1972, the applicant enlisted in the Regular Army. He completed initial training as a bridge specialist. 3. On 7 August 1973, the applicant accepted non-judicial punishment for dereliction of duty. 4. On 12 December 1973, the applicant was advanced to specialist four, pay grade E-4. 5. On 3 March 1974, the applicant was absent without leave (AWOL). He surrendered to military authorities on 15 April 1974. On 22 April 1974, he again went AWOL. Subsequently, he was arrested by civilian authorities for grand larceny, burglary, and possession of marijuana. 6. On 4 October 1974, the applicant was convicted in civilian court. He received the following sentence, which ran concurrently: * 11 months and 29 days for possession of marijuana * 3 years, but not more than 4 years for one charge of burglary * 3 years for third degree burglary * 1 year for grand larceny 7. On 10 December 1974, the applicant was notified of action to discharge him from the military under the provisions of Army Regulation 635-206, due to conviction by civil authorities. The applicant responded by requesting consideration of his case by a board of officers. 8. On 23 January 1975, a board of officers carefully considered the evidence before it and found the applicant should be discharged from the service due to civil conviction. The board recommended he receive an undesirable discharge. 9. On 31 January 1975, the applicant's commanding general approved the recommendation that he be eliminated from the service under the provisions of Army Regulation 635-206, due to conviction by civilian court. The commander directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 10. On 12 February 1975, the applicant was discharged accordingly. His DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-206, with separation program designator JKB, for misconduct and conviction by a civil court. His service was characterized as under conditions other than honorable. He completed a total of 1 year, 5 months, and 28 days of creditable active service and he had approximately 340 days of lost time. 11. On 23 December 1981, the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his discharge. The ADRB determined that the applicant’s discharge was proper and equitable and denied his request. REFERENCES: 1. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 33 of the regulation provided that members convicted by civil authorities would be considered for separation. An undesirable discharge (i.e., under other than honorable conditions) was normally considered appropriate at the time. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided 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. b. Paragraph 3-7b provided 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 3-9 provided for uncharacterized separations when Soldiers were still in an entry level status (generally the first 6 months of active duty) or as a result of a voided enlistment or induction. DISCUSSION: 1. The applicant contends that his military records should be corrected by upgrading his undesirable service to show that his service is uncharacterized because he has married, raised a family, and he has not been in trouble with the law. 2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge and the reasons therefore were appropriate considering all of the facts of the case. 3. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel. The separation authority determined his service would be characterized as under other than honorable conditions, which was commensurate with the reason for his discharge. 4. He was not in an entry-level status when he was discharged. There is no basis for showing his service is uncharacterized. 5. The applicant’s claim of good post-service conduct is noted. Good post-service conduct alone is not normally a basis for upgrading a characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017313 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017313 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2