BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160003996 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: 28 November 2017 DOCKET NUMBER: AR20160003996 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160003996 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 his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect, that he was a troubled, immature eighteen year old who was given the option to volunteer for the Army. He enjoyed the Army; however, because of peer pressure, he made some bad choices that he has come to regret. He does not want to die as a dishonorable veteran and wishes to have his discharge upgraded so his children and grandchildren will be proud of him. 3. The applicant provides a hand-written statement with his application. 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 4 June 1973, at 18 years of age. The highest rank/grade he attained while serving on active duty was private two (PV2)/E-2. 3. The applicant accepted non-judicial punishment on 19 November 1973, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 3 November 1973 through on or about 18 November 1973. 4. Special Court Martial-Order Number 27, issued by Headquarters, 3rd Brigade, 1st Cavalry Division, Fort Hood, TX on 4 June 1974, shows the applicant plead guilty and/or was convicted of one specification of being AWOL from on or about 17 January 1974 through on or about 6 March 1974. He was sentenced to confinement at hard labor for 15 days, forfeiture of $150.00 per month for two months, and to be reduced to the rank/grade of private/E-1. His sentence was adjudged on 22 April 1974. The approving authority approved the sentence on 4 June 1974. 5. The applicant's record contains a memorandum from his Commander, Combat Support Company, 2nd Battalion, 7th Cavalry Regiment, 1st Cavalry Division, dated 11 July 1974, subject: CO's Inquiry, which shows the applicant departed AWOL on 3 June 1974 and was dropped from the rolls on 2 July 1974. The memorandum discusses the applicant's previous NJP and special court-martial conviction. 6. The applicant's record contains a memorandum from the Commander, U.S. Army Personnel Control Facility, Fort Hood, TX, to the Commander, U.S. Army Enlisted Personnel Center, Fort Benjamin Harrison, IN, dated 8 April 1975, subject: [Enlisted Member] Arrested/Confined by Civil Authorities. This memorandum shows, in effect: a. The applicant was assigned to the U.S. Army Personnel Control Facility in accordance with applicable Army regulations. b. The appropriate civil authorities were contacted to ascertain the status of the individual. The applicant was arrested on one count of burglary and [following conviction] was sentenced to five years in the Texas Department of Corrections. The applicant's minimum release date was determined to be 29 November 1977 and his maximum release date was 29 November 1979. c. The applicant was in the Ferguson Unit of the Texas Department of Corrections, Midway, TX. 7. Special Orders Number 73, issued by Headquarters, III Corps and Fort Hood, TX on 11 April 1975, show the applicant's status as confined at the Texas Department of Corrections and as assigned to the U.S. Army Personnel Control Facility, Fort Hood, TX, effective 30 December 1974. 8. The applicant's commander notified him on or about 14 April 1975 that he was being considered for elimination under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), based on his civil conviction. His 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 9. The applicant acknowledged receipt of the notification on 14 April 1975. 10. The applicant met with counsel on 14 April 1975 and requested his case be considered by a board of officers. He elected not to submit statements in his own behalf, and he elected to waive representation by counsel. He further stated he understood that a result of an issuance of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both federal and state law and he could expect to encounter substantial prejudice in civilian life. 11. The applicant's commander recommended, on 23 April 1975, that he be eliminated from the service under the provisions of Army Regulation 635-206. He cited the applicant's civil conviction, his unsatisfactory conduct and efficiency ratings, his military record of nonjudicial punishment, court-martial, multiple period of AWOL service, and his civil confinement. 12. The applicant was notified on 5 May 1975 to appear before a board of officers under the provisions of Army Regulation 635-206, to determine if he should be discharged from the Army because of his civil confinement. The applicant acknowledged receipt on 7 May 1975. 13. A board of officers convened at Fort Hood, TX on 18 June 1975. As a result of his incarceration, the applicant did not appear; however, he was represented by counsel. The board found the applicant was undesirable for further retention because of his conviction by civil court. The board recommended he be discharged from the service because of conviction by civil court with issuance of a DD Form 258A (Undesirable Discharge Certificate). 14. On 18 July 1975, the separation authority approved the board's recommendation that the applicant be separated under the provisions of Army Regulation 635-206, section VI, due to conviction by civil court. The separation authority directed that the applicant be reduced to the lowest enlisted grade, and that he be issued an Undesirable Discharge Certificate. 15. The applicant was discharged on 13 August 1975. The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was separated under the provisions of Army Regulation 635-206, section VI, Separation Program Designator (SPD) "JKB," by reason of conviction by civil court. He completed 9 months and 27 days of total active service that was characterized as under other than honorable conditions. His DD Form 214 also shows he had 500 days lost time. 16. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 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 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service. If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General. Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policies and procedures for the separation of enlisted personnel. 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. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The applicant's record shows he was convicted of burglary by a Texas court. He was sentenced to five years in confinement. Further, his military record reveals multiple offenses of AWOL that resulted in nonjudicial punishment and a special court-martial conviction. 3. The applicant's chain of command initiated separation action against him and he was notified accordingly. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 4. The applicant contends he was 18 years of age at the time of his enlistment and very immature. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 5. The applicant further contends an upgrade of his discharge would be of benefit to his children, grandchildren, and his honor. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003996 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003996 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2