RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060013719 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


x

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, that he was found guilty of grand theft auto by association in civil court and was sentenced to 60 days confinement.  He claims that after his release from civilian detention, he was immediately discharged from the military without being court-martialed, and was denied an opportunity to prove his innocence in a military court.  He states that prior to his civil conviction, he had a good military record and feels he was a victim of circumstances.  He also states that over the years he has worked for the Minnesota Department of Corrections and Ohio Youth Commission and has a good work record.  He further states that he requests his case be reconsidered and that his UD be upgraded.

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 16 October 1964.  The application submitted in this case is dated 
18 September 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 14 May 1963.  He was trained in and awarded military occupational specialty (MOS) 760.07 (Supply Clerk), and the highest rank he attained while serving on active duty was private first class (PFC).  


4.  The applicant’s record shows that during his tenure on active duty, he earned the Parachutist Badge and Marksman Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions. 

6.  On 9 July 1963, the applicant accepted NJP for being derelict in the performance of his duties.  His punishment for this offense was a forfeiture of $8.00 and 10 days of extra duty and restriction.  

7.  On 22 May 1964, the applicant accepted NJP for willfully disobeying a lawful order from a noncommissioned officer to perform guard duty.  His punishment for this offense was a reduction to private/E-2 (PV2), a forfeiture of $20.00 and 
14 days extra duty and restriction.  

8.  On 22 July 1964, the applicant accepted NJP for being disrespectful in language towards two members of the civil police force by addressing them with profane language.  His punishment for this offense was 7 days of extra duty and restriction.  

9.  On 14 September, 1964, the applicant was convicted of attempting to commit a felony in Criminal Court Montgomery County, Tennessee, and received a sentence of six months in the Montgomery County Workhouse, which was suspended, and a fine of $50.00.  

10.  On 2 October 1964, the unit commander notified the applicant he was recommending his discharge under the provisions of section III, Army Regulation 635-206, based on his conviction and sentence by civil court, and that he could receive an UD.  The unit commander also advised the applicant of his right to a hearing before a board of officers, of the applicable waiver provisions, and of his right to submit written statements in his own behalf. The applicant was also informed of his right to counsel, and that military counsel would be made available to him, or that he could employ civilian counsel at no expense to the United States Government if he so desired.  


11.  The applicant acknowledged receipt of the commander's separation notification, and after being advised of the basis for the contemplated separation action, and of his rights, he elected to waive his right to a hearing before a board of officers, and he elected not to submit statements in his own behalf.  He also acknowledged that he understood that if he received an UD, he could be deprived of many or all rights as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life as a result of his discharge.  

12.  On 16 September 1964, the applicant provided a statement in which he stated he did not intend to appeal his sentence of 6 months confinement (suspended) and $50.00 fine and court costs, given as a sentence by the Circuit and Criminal Court, Montgomery County, Clarksville, Tennessee, on a charge of attempt to commit a felony. 

13.  On 6 October 1964, the Adjutant provided a statement certifying that the civil conviction of the applicant was for an offense that was also an offense under Article 121 of the UCMJ, and for which the maximum punishment was five years confinement and a dishonorable discharge.

14. The separation authority approved the applicant’s separation under the provisions of Army Regulation 635-206, by reason of civil conviction, and directed the applicant receive an UD.  On 16 October 1964, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his separation confirms he completed a total of 1 year, 3 months and 7 days of creditable active military service, and that he accrued 56 days of time lost due to confinement.  

15.  On 2 December 1974, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s case, determined his discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.  

16.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  An UD was normally considered appropriate for members separating under this provision of the regulation.

17.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because the charges and circumstances leading to his discharge were unjust was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant's contention that he has been a good law abiding citizen with a good work record since his discharge was also carefully considered.  However, while the applicant's post service conduct is noteworthy, this factor is not sufficiently mitigating to warrant an upgrade of his discharge at this time.  

3.  The applicant's record shows he completed less than 1 and 1/2 years of service, and that he was convicted attempting to commit a felony by a civil court and was sentenced to civil confinement.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of undistinguished service.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 2 December 1974.  As a result, the time for him to file a request for correction of any error or injustice to this Board expired on 1 December 1977.  He failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x  _  __x __  _x __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




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          CHAIRPERSON




INDEX

CASE ID
AR20060013719
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/29
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1967/10/16
DISCHARGE AUTHORITY
AR635-206 . . . . .  
DISCHARGE REASON
Civil conviction
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.