IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160004242 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 IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160004242 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. IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160004242 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 was 19 years old. While home on leave he was arrested for aggravated assault. He was intoxicated and high on drugs. He was sentenced to "11 1/2 to 23 months in jail." Since being discharged he has been an outstanding citizen. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 and entered active duty on 21 October 1968. He completed basic training and, despite being absent without leave (AWOL) from 28 February to 3 March 1969 (as shown on his DD Form 214), he completed advanced individual training as a cook. For being AWOL he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 4 March 1969. 3. He was assigned to the Overseas Replacement Station at Fort Dix, New Jersey, on 1 April 1969. While there he went AWOL from 8 through 18 April 1969 (as shown on his DD Form 214). He received NJP on 5 May 1969. 4. At Fort George G. Meade, Maryland, he was convicted by special court-martial on 3 November 1969 for three periods of AWOL from 7 June to 21 July 1969, from 1 to 13 August and from 22 August to 1 September 1969. He was sentenced to 4 months of hard labor. He was also convicted by a summary court-martial of being AWOL from 5 to 21 January 1970 while stationed at Fort Rucker, Alabama. His punishment included forfeiture of pay, reduction to pay grade E-1, and hard labor without confinement for 45 days. 5. On 27 April 1970 the applicant pleaded guilty in civilian court in Erie County, Pennsylvania, to the 11 March 1970 offenses of two counts of aggravated assault and battery. The military police report shows his age as 18. His sentence included confinement from 8 months to 23 months in the county jail. On 17 June 1970 he was placed on parole. 6. A 25 September 1970 psychiatric evaluation shows he was diagnosed with a character and behavior disorder which existed prior to service, did not constitute a disability, and was not considered amenable to treatment. The applicant's behavior was normal. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal, and his memory good. There were no significant mental defects identified warranting disposition through medical channels. The applicant was mentally responsible and he was able to distinguish right from wrong and to adhere to the right. 7. A 26 October 1970 memorandum from the company commander recommended the applicant be discharged because of his civil conviction. The recommendation was returned without action because the time for the applicant to file an appeal had not yet expired. 8. On 4 November 1970 the applicant was notified that he was being recommended for separation under the provisions of Army Regulation 635-206 (Personnel Separations ? Discharge Misconduct ? Fraudulent Entry, Conviction by Civil Court, AWOL, or Desertion). He was advised that he had the right to have his case heard by a board of officers, to submit statements in his own behalf, to be represented by counselor, or to waive any of the above in writing. 9. The applicant consulted with counsel and waived his rights. He also acknowledged that he understood the consequences of a less than honorable discharge including that a discharge under conditions other than honorable could result in the loss of Federal and State benefits. 10. On 21 December 1970 the applicant indicated in writing that he did not intend to appeal in his civilian case. The chain of command recommended approval and the separation authority directed that an Undesirable Discharge Certificate be issued. 12. On 18 January 1971 the applicant was separated under the provisions of Army Regulation 635-206 with a separation program number of 284 (convicted by a civil court). In approximately 2 years and 3 months in the Army the applicant had 1 year, 1 month, and 20 days of creditable service and had accumulated approximately 399 days of lost time. His DD Form 214 shows the National Defense Service Medal as the only authorized award. REFERENCES: 1. Army Regulation 635-206, then in effect, provided that an enlisted member who was convicted by a civilian court of an offense(s) for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination. When such separation was warranted an undesirable discharge was considered appropriate. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7a states 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: 1. The applicant states he was 19 years old. While home on leave he was arrested for aggravated assault. He was intoxicated and high on drugs. He was sentenced to "11 1/2 to 23 months in jail." Since being discharged he has been an outstanding citizen. 2. The evidence shows the applicant was 18 years old when he committed the offenses that led to his discharge. A psychiatric evaluation was conducted during the processing of his discharge and after his civilian confinement. The applicant had no boardable mental health illnesses requiring disposition through medical channels. The psychiatrist found the applicant was able to tell the difference between right and wrong. He also determined the applicant had a character and behavior disorder which existed prior to service. 3. The applicant offered no evidence nor argument to show intoxication by alcohol or drugs mitigated any of his offenses. 4. The applicant claims he has been an outstanding citizen since discharge; however, he submits no evidence to substantiate this claim and offered no argument as to why his post-service conduct warrants upgrading his discharge. 5. The discharge proceedings were conducted in accordance with the law and regulations applicable at the time.  The applicant's lost time is almost equal to his creditable time. It appears the character of his discharge is commensurate with his overall military record, which included two court-martial convictions, two Article 15s, and a civilian conviction for aggravated assault and battery. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004242 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004242 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2