PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            24 February 2000                  
	DOCKET NUMBER:    AR1999030627

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. James P. Huber		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that a report of separation (DD Form 214) be issued for his discharge. 

3.  The applicant states, in effect, that he never received a discharge or a DD Form 214 for his service and he has been trying to obtain one for many years to no avail.  He also states that when he inquired on how to obtain a DD Form 214 he was informed that one was not issued because he was listed as a deserter.  He continues by stating that he does not know how he could be listed as a deserter when the military authorities knew he was convicted by civil authorities and processed him for separation based on that conviction.

4.  The applicant’s military records show that he enlisted in Baltimore, Maryland with parental consent on 16 June 1971 for a period of 2 years.  At the time of his enlistment he indicated that he had no prior civil arrests or convictions.

5.  He successfully completed his basic training at Fort Dix, New Jersey and remained there to undergo advanced individual training (AIT) as a cook.  While in AIT he received nonjudicial punishment on 15 October 1971 for assaulting another soldier by cutting him with a razor,  His punishment consisted of a forfeiture of pay.

6.  He went AWOL on 18 October 1971 and remained absent until 2 November 1971.  He again went AWOL on 11 November 1971 and remained absent in a deserter status until he was apprehended by civil authorities in Washington, D.C. on 25 December 1971 regarding deadly weapons charges.  The charges were dropped and he was returned to military control on 26 December 1971.  He went AWOL on the day of his release and remained absent in a deserter status until he was returned to military control at Fort Meade, Maryland on 15 February 1972.  He went AWOL again on 17 February and remained absent in a deserter status until he was arrested on 22 March 1972 and was charged with armed robbery, unauthorized use of a motor vehicle, and assault with a deadly weapon. He was convicted of the charges on 6 December 1972 and was sentenced to incarceration for a period not to exceed 10 years and was transferred to the Youth Center at Lorton, Virginia.  The applicant was incarcerated at a different institution at the time he applied to the Board.

7.  On 19 December 1972 the applicant was notified that he was being recommended for separation from the service under the provisions of Army Regulation 635-206 due to his conviction by civil authorities.  The applicant acknowledged the notification of separation on 14 January 1973 and indicated that he desired representation by counsel, consideration of his case by a board of officers, and the opportunity to submit a statement in his own behalf.  He also indicated that he did not intend to appeal his conviction.

8.  A board of officers convened at Fort Belvoir, Virginia on 21 June 1973 with the applicant being represented by counsel.  A statement from the applicant as well as other supporting statements on the applicant’s behalf were submitted in evidence to the board.  After considering all of the available evidence, the board determined that the applicant was undesirable for further retention and recommended that he be discharged under other than honorable conditions.

9.  The appropriate authority approved the findings and recommendation of the Board and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged under other than honorable conditions on 17 July 1973 under the provisions of Army Regulation 635-206, due to conviction by civil authorities.  It appears that he had approximately 2 years, 1 month and 2 days of total active service and approximately 626 days of lost time due to AWOL and confinement by civil authorities.  However, there is no indication in the available records to show that a DD Form 214 was issued and there is information contained in the records that attempts to obtain a copy of the DD Form 214 from alternate sources has been unsuccessful.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 13 March 1979 and indicated at that time that he had never received any discharge documents but assumed that he had received an undesirable discharge because he was processed for separation under the provisions of Army Regulation 635-206 based on his civil conviction.  The ADRB noted that there was not a DD Form 214 present in his Official Military File (OMPF) to determine his exact service but opined that the basis and characterization of his service was appropriate and did not warrant further relief.

12.  A review of the applicant’s records also revealed that the Department was notified by the FBI that the applicant’s enlistment fingerprints were checked and that it was discovered that the applicant had a prior arrest record for three separate incidents from May 1969 to March 1971 involving assault, robbery, force and violence.

13.  Army Regulation 635-5, in effect at the time, served as the authority for the preparation of the DD Form 214.  It states, in pertinent part, that a DD Form 214 will be issued at the time of separation for each member of the Regular Army except enlisted personnel who are dropped from a period of service because of fraudulent enlistment or induction in accordance with Army Regulation 635-206 and USAR personnel who were in a deserter status at the time of discharge.

14.  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, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

CONCLUSIONS:

1.  Although the Board agrees that the applicant was properly discharged under other than honorable conditions under the provisions of Army Regulation       635-206 based on his conviction by civil authorities, it does not appear that the administrative requirement to issue the applicant a DD Form 214 was completed in accordance with the applicable regulations..

2.  While the applicable regulation provided that a DD Form 214 would not be prepared for personnel who fraudulently enlisted, as did the applicant, he was not processed for separation under that provision.  Therefore, a DD Form 214 should have been issued at the time of separation. 

3.  Furthermore, inquiries from all alternate sources have failed to produce a 
DD Form 214, and given that the applicant has attempted repeatedly over the past 20 years to obtain the document, it is reasonable to presume that one was not prepared.  Accordingly, it would be in the interest of justice to issue him one at this time.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by issuing the individual concerned a DD Form 214 and appropriate discharge certificate reflecting his discharge under other than honorable conditions on 17 July 1973 under the provisions of Army Regulation 635-206, due to conviction by civil authorities.

BOARD VOTE:  

__cla__      _jph___    __mvt__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999030627	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/02/24	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.110.0000	189/ISSUE 214	
2.		
3.		
4.		
5.		
6.