BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160003275 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: 19 September 2017 DOCKET NUMBER: AR20160003275 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 to amend the decisions of the ABCMR set forth in Docket Number AR20110015736, dated 21 February 2012. ___________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: 19 September 2017 DOCKET NUMBER: AR20160003275 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 reconsideration of his earlier request for an upgrade of his discharge under other than honorable conditions to general under honorable conditions. 2. The applicant states, in effect, he desires an upgrade of his discharge to qualify for veterans' benefits and medical care. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110015736 on 21 February 2012. 2. The applicant provides a new argument as evidence that was not previously considered and warrants consideration at this time. 3. The applicant enlisted in the Regular Army on 26 January 1970 for a period of 3 years. 4. He served in Vietnam during the period 30 July 1970 to 9 June 1971. 5. His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows: * on 1 October 1971, for failing to go to his appointed place of duty on 10 August, 12 August, 21 September, and 24 September 1971 * on 15 November 1971, for failing to go to his appointed place of duty on 13 October, 14 October, and 20 October 1971 * on 10 February 1972, for failing to go to his appointed place of duty on 24 January and 25 January 1972 6. His records show he was absent without leave on 24 February 1972 and he was dropped from the unit rolls on 24 March 1972. 7. On 15 October 1972, he surrendered to civil authorities and he was charged with armed robbery and murder. He remained incarcerated until he was bonded on 21 December 1972. He remained free on bond until his bondsman surrendered him on 27 March 1973. 8. On 27 March 1973, an agent from the Federal Bureau of Investigations notified the Army of the applicant's apprehension. 9. His Report of Mental Status Evaluation, dated 4 April 1973, shows he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and he met Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, retention standards. 10. On 26 April 1973, he returned to military control following a period of unauthorized absence. 11. On 26 April 1973, he pled not guilty to charges of murder and armed robbery before the Circuit Court of the City of Nansemond, VA. The Circuit Court of the City of Nansemond found him guilty of armed robbery and murder in the first degree. 12. U.S. Army Transportation Center and Fort Eustis Special Orders Number 104, dated 31 May 1973, assigned him to Headquarters and Headquarters Company, 11th Transportation Battalion, Fort Eustis, VA, for administration and disposition effective 31 May 1973. These orders show he was presently confined in the hands of civil authorities, having been previously dropped from the rolls of the 26th Transportation Company. 13. On 13 September 1973, he was sentenced to 20 years in confinement in the penitentiary of the Commonwealth of Virginia. 14. On 26 September 1973, he was notified of initiation of his elimination proceedings under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, Absence without Leave, Desertion)) due to his civilian conviction for armed robbery and murder in the first degree. He was also advised, in part, on the following: a.  he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions; b. he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life if an undesirable discharge under conditions other than honorable were issued; and c.  he had the right to request consideration of his case by a board of officers, reconsideration of appointment of military counsel, to submit statements in his own behalf, or waive his rights in writing. 15. On 8 June 1974, the applicant requested to appear before a board of officers with counsel. 16. On 13 September 1974, his request to appear before a board of officers was denied. 17. On 13 September 1974, counsel for the applicant submitted a statement on his behalf wherein he stated the applicant informed the police he had been an unwilling participant in the incident. He did not voluntarily commit any crime on 13 November 1972. He has always and still maintains his innocence of any criminal involvement in the incident. Mr. L____ R. M____ testified in court on 26 April 1973 that he was the one who planned the crime and shot the victim, and he forced the applicant at gunpoint, using the gun he used in the crime, to accompany him when he committed the crime. 18. On 16 September 1974, a board of officers met at Fort Eustis, VA, to determine if the applicant should be discharged from the Army for a civil conviction under the provisions of Army Regulation 635-206. a.  The applicant did not appear but was represented by counsel. b.  The board of officers considered the evidence and found the applicant unfit for retention. The board recommended his separation from the service due to civil court conviction with issuance of an Undesirable Discharge Certificate. 19. On 23 September 1974, the separation authority approved the findings of the board of officers and directed the applicant's reduction to the lowest enlisted grade and separation from the Army with an undesirable discharge. He further directed annotation of his discharge to reflect a non-waivable moral and administrative disqualification, barring him from further enlistment in the Army. 20. On 27 September 1974, he was discharged under the provisions of Army Regulation 635-206 due to conviction by civil authorities. His DD Form 214 shows he completed 2 years and 21 days of creditable active military service. He had 941 days of lost time under the provisions of Title 10, U.S. Code, section 972. 21. On 6 January 1982 after a personal appearance hearing, the Army Discharge Review Board denied his request for an upgrade of his discharge. 22. On 21 February 2012, the ABCMR denied his request for an upgrade of his discharge. REFERENCES: 1. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct. Paragraph 25 provided that members convicted by civil authorities would be processed for separation. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 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 applicant was convicted by a civil court and he was sentenced to 20 years of imprisonment for armed robbery and murder in the first degree. 2. There is no evidence of record and he provided no evidence showing he was not properly and equitably discharged from the Army in accordance with the regulations in effect at the time. 3. Prior to his separation from the Army, he acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws if he were discharged under other than honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) XX 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003275 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2