IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: 20150007260 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 other than honorable conditions (UOTHC) discharge. 2. The applicant states: a. He joined the Army when he was 18 years old. He attended basic training at Fort Campbell, KY. He attended advanced individual training (AIT) at Fort Dix, NJ. He was transferred to Fort Richardson, AK, for 2 years. When he completed his tour in Alaska he went on leave to Tennessee. b. Two days before he was to report to Fort Riley, KS, he went out to visit family and friends. On his way home he ran into a friend from high school. They decided to go riding and drink a few beers. They were in his friend’s car and his friend was driving. He was already tired from being out all day and he was intoxicated and sleepy. His friend said he needed to make some money but he did not think a whole lot about it. c. His friend pulled into a parking lot on the south end of Maryville, TN. There was a lot of construction going on. His friend got out of the car and said he would be right back. He laid back in his seat and dozed off. His friend woke him up by slamming the door. He told his friend that he was ready to go to his car. He went home and got ready to report to Fort Riley. d. About 3 days after he reported to Fort Riley he was questioned by authorities about a bank robbery. He did not know what his friend was going to do when he pulled off around the construction site. If he had known what his friend was going to do, he would have talked him out of it or he would not have been with him. He was in the Army and did not need any trouble like that in his life. e. The authorities told him it was a small bank trailer. His friend later told him that he did not know it was a bank trailer. He was arrested and taken to Knoxville, TN. He told the authorities that he was not aware of what his friend had done. He spoke to the sheriff about the situation. The sheriff told him he was proud of his decision to join the Army; however, he was in the car with his friend and he would not be able to do anything to help him. f. He and his friend were sentenced to 1 to 2 years in federal prison. He served 12 months and was then sent to Fort Benning, GA. He regrets the way everything happened. He had planned on making a career of the military. He was young and had a very hard time in life because of what happened. He did not keep a steady job and started drinking a lot. His mind was really affected by what happened. He will be 65 years old in July and it still bothers him. The worst mistake in his life was getting into the car with his friend that day. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a self-authored statement. 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 19 January 1968. He completed basic combat training and AIT and was awarded military occupational specialty 11B (Rifleman). The highest rank/grade he attained while serving on active duty was specialist/E-4. 3. In July 1970, the U.S. Attorney filed charges against him related to a bank robbery that occurred on or about 20 June 1970. 4. On 17 September 1970, he pleaded guilty to and was convicted of the charges against him by the United States District Court, Eastern District of Tennessee, Northern Division. 5. On 11 August 1971, his commander notified him he was being processed for discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge, Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion). The commander advised him of his right to: * appointment of military counsel to represent him and, in his absence, present his case before a board of officers * submit statements in his own behalf * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge 6. On 15 September 1971, he waived his rights and stated he did not intend to submit statements in his own behalf. 7. On 16 September 1971, his commander recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-206. He had been found guilty of two counts of bank robbery and he was sentenced to 6 years of confinement. On 23 July 1971, he was placed on probation for the remainder of the sentence. 8. On 29 September 1971, the appropriate authority approved the recommendation for separation due to a civil court conviction and directed that the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. 9. On 8 October 1971, he was discharged under the provisions of Army Regulation 635-206 due to a civil conviction. He was issued an Undesirable Discharge Certificate. He completed 2 years, 8 months, and 24 days of net active service that was characterized as UOTHC. 10. On 17 October 1974, the Army Discharge Review Board denied his request for an upgrade of his discharge. 11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides 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. 12. Army Regulation 635-206, in effect at the time, provided administrative separation guidance for enlisted personnel who had committed an act of misconduct. This regulation addressed cases where Soldiers had been convicted by a civil court for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) was death or confinement in excess of 1 year. The character of service was normally under other than honorable conditions. DISCUSSION AND CONCLUSIONS: 1. The applicant was discharged based on his civil conviction. He was notified of his rights concerning his discharge. He waived all of his rights and he did not submit a statement in his own behalf. 2. He contends he did not commit the bank robbery; however, he pleaded guilty to the charge. His contention that he was only 18 when he enlisted in the military is noted; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 3. All requirements of law and regulations in effect at the time were met and the rights of the applicant were fully protected throughout the separation process. Considering all the facts of the case, there is no evidence of inequity or injustice in the type of discharge and the reason for separation. 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) AR20150007260 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007260 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1