BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150004270 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 under honorable conditions characterization of service. 2. The applicant states: * the court did not have the jurisdiction or authority to prosecute his case * he was not properly represented by an attorney * he was unjustly discharged from the service with a general discharge * we live in a country of laws and the law was broken; the justice system and his constitutional rights were violated 3. The applicant provides: * State of NC Court Order * Fingerprint card * Disposition of charges * Federal criminal history record 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 for a period of 3 years on 3 September 1963. The expiration of his term of service (ETS) date was established as 2 September 1966. 3. He completed training and he was awarded military occupational specialty 68D (Aircraft Power Train Repairer). He was assigned to Company B, 782nd Maintenance Battalion, Fort Bragg, NC. 4. On 3 March 1965, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being apprehended for the possession and carrying of concealed weapons and ammunition and discharging a firearm on Fort Bragg. 5. On 3 February 1966, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 6 February 1966. 6. On 10 February 1966, he again departed his unit in an AWOL status and was immediately dropped from the Army rolls as a deserter. 7. On 4 April 1966, correspondence was received from the Department of Justice that the applicant was arrested by civil authorities with an alleged charge of assault with a deadly weapon with intent to kill. 8. On 18 April 1966, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) by reason of conviction by a civil court, and recommended a dishonorable discharge. The commander indicated: a. The applicant was convicted for assault with a deadly weapon with intent to kill and taxed $115 hospital bill plus the cost court on 28 February 1966. He was unable to make the payment and was remanded to confinement in the city jail in Fayetteville, NC pending payment of the cost. On 2 March 1966, he was sentenced to 60 days of imprisonment, suspended for 2 years, and ordered to pay the cost to the hospital and court. He completed his sentence on 16 April 1966. b. In addition to his conviction, he was also involved in civil trespassing on 11 May 1965, carrying a concealed and dangerous weapon on 18 January 1965, civil speeding on 17 May 1965, civil improper vehicle registration on 4 June 1965, civil bedding and unlawful cohabitation on 12 July 1965, and civil simple assault on 13 January 1966. He was reduced to E-2 on 27 August 1965 for bringing discredit to the Armed Forces. He was also AWOL from 7 to 10 February 1966 and was later dropped from the Army rolls as a deserter. 9. The applicant's chain of command recommended approval but the separation authority returned the separation recommendation without action because the maximum penalty (imposed by the civil court) did not exceed 1 year as required by paragraph 22 of Army Regulation 635-206. 10. The applicant returned to military control on 27 May 1966 and resumed his duties with Company B, 782nd Maintenance Battalion, at Fort Bragg, NC. 11. On 16 December 1966, he accepted NJP under the provisions of Article 15 of the UCMJ for violating a Fort Bragg regulation (speeding on post). His punishment consisted of a reduction to the lowest enlisted grade. 12. He was released from active duty (REFRAD) on 27 December 1966 by reason of ETS. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations) with an under honorable conditions (general) discharge. He was assigned Separation Program Number (SPN) 201 (ETS) and his DD Form 214 shows he completed 3 years and 1 day of active service and he had 115 days of lost time. 13. He provides: a. State of NC Court Order, dated 31 May 2012, correcting his charge of assault with a deadly weapon with intent to kill to simple assault. b. A letter, dated 20 May 2002, from the Clerk of Superior Court, Fayetteville, NC informing him that the records pertaining to the charge of an offense of assault with deadly weapon have been destroyed. c. Federal criminal history record, dated 2 January 2001, listing his offenses. 14. There is no indication he applied to the Army Discharge Review Board for a review of his characterization of service within that board's 15-years statute of limitations. 15. 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). That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was 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 undesirable discharge was normally considered appropriate. 16. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides that a separation from the Army under honorable conditions is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant was not discharged for the charge of assault. The recommendation to separate him by reason of civil conviction for the charge of assault with a deadly weapon with intent to kill was returned without action by the separation authority because the sentence did not exceed 1 year as required by the regulation governing such discharge. 2. Once he returned to military control in May 1966, he returned to his unit and resumed his military duties at Fort Bragg, NC, until he was separated. He was separated by reason of ETS. He had enlisted for 3 years in September 1963 and his ETS date was in September 1966. However, he had lost time which was repaid in the form of serving through December 1966. He was ultimately REFRAD with a general characterization of service. 3. An honorable characterization of service 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. The applicant's service did not meet the standards of acceptable conduct because: * he had two incidents of NJP * he was convicted by civil court (regardless of the charge) * he was AWOL on more than one occasion * he was dropped from the Army rolls as a deserter * he had multiple civilian offenses (trespassing, unlawful cohabitation, speeding, vehicle registration, etc.) 4. His claims that his constitutional rights were violated and that he was not represented by an attorney lack merit because he was not discharged due to his civilian conviction. He was REFRAD upon completion of his required active duty service. 5. He does not meet the criteria for an honorable characterization of service. The fact that the State of NC amended the charge to a simple assault has no bearing on his REFRAD by reason of ETS. 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) AR20150004270 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004270 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1