IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150007961 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 undesirable discharge. 2. The applicant states he volunteered to deploy to Vietnam and his service was honorable. He was home on leave when he was arrested by civil authorities and was unable to fulfill his overseas deployment. He believes his service was always honorable and his discharge should reflect this fact. He is getting old and needs benefits from his service. 3. The applicant provides copies of his– * 11 September 1967 Honorable Discharge Certificate * 3 July 1969 Undesirable Discharge Certificate * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 3 July 1969 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 10 January 1967. He reenlisted on 11 September 1967. He held military occupational specialty (MOS) 11B (Light Weapons Infantryman). 3. A summary court-martial convicted him on 6 January 1968, in accordance with his plea, of being absent without leave (AWOL) from 31 October 1967 to 8 November 1967. 4. His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 30 September 1968 for using a false liberty pass. 5. On 3 March 1969 the applicant was convicted of burglary in Wabash County, IL. He was sentenced to confinement for a minimum of 2 years to a maximum of 5 years in the Illinois State Penitentiary. 6. On 30 April 1969 while incarcerated, the applicant met with a veterans’ service officer and signed a statement indicating he waived military counsel, waived appointment of a military counsel to represent him in his absence, and did not desire to submit a statement in his behalf. He indicated he would not appeal his civil conviction to the appropriate superior court and that his first appearance before the parole board would be in November 1970. 7. On 11 June 1969 his unit commander initiated action to discharge the applicant under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge-Misconduct-Commission of a Serious Offense)) because the applicant had been convicted by civil authorities, was intentionally AWOL, and excessive lost time. The separation action was initiated in absentia by the Special Processing Company Commander, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, MO. The commander recommended issuance of an undesirable discharge. 8. The applicant acknowledged receipt of his commander’s notification to separation him under the provisions of Army Regulation 635-206. 9. Consistent with the chain of command recommendation, on 27 June 1969, the appropriate authority approved the recommendation and directed issuance of an Undesirable Discharge Certificate. 10. Accordingly, the applicant was discharged under conditions other than honorable on 3 July 1969. He had completed total of 1 year, 10 months, and 24 days of net active duty service. He had 212 days of lost time. 11. There is no available record showing he applied to the Army Discharge Review Board for an upgrade of his discharge. 12. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and AWOL or desertion). An undesirable discharge was normally considered appropriate. 13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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 states 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 AND CONCLUSIONS: 1. While in an active duty status, the applicant was convicted by civil authorities for burglary and incarcerated for a 2 to 5 year period. Based on his incarceration he was not able to fulfill his enlistment contract so separation action was initiated to remove him. In addition, he had a history of AWOL and minor disciplinary infractions. 2. The applicant's administrative separation was accomplished in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharges directed and the narrative reason were appropriate and equitable. 3. The Army has never had a policy wherein a discharge is upgraded due to passage of time, based on one’s post-service conduct or to entitle one to veteran's benefits. 4. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. He has not shown an error, injustice, or inequity in the processing of his separation. In view of the foregoing, there is an insufficient evidentiary basis for granting him his requested relief. 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) AR20110020137 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007961 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1