RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070012683 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald L. Lewy

Member

Mr. David W. Tucker

Member

	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, sister and legal guardian of the now legally incompetent former service member (FSM), requests an upgrade of her brother's undesirable discharge to general, under honorable conditions.   

2.  The applicant states, in effect, that her brother had a history of juvenile offenses before his entry into the United States Army at 17 years of age.  He should not have been allowed to enlist.  He was put in prison for 9 years and has been out for 14 years.  He was not diagnosed and given treatment until 1996.  Since then he has stayed out of trouble.  

3.  The applicant provides copies of court ordered guardianship, acceptance of trust, and Michigan State Corrections Record.

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.  On 31 October 1963, the FSM enlisted in the Regular Army for 3 years.  He stated on his Enlistment Record (DD Form 4) in Items 27 through 31 that he had never been arrested, charged, or held by any law enforcement authority for violation of any law.  He further stated that he had never been convicted of a felony or any other offense, or had been adjudicated a youthful offender or a juvenile delinquent.  

3.  The FSM completed his initial training and was awarded military occupational specialty 760.00 (Supply Clerk).  He was subsequently assigned as a supply clerk with the 1st Armored Division, Fort Hood, Texas.


4.  Extract copies of morning reports show that the FSM was absent without leave (AWOL) on 20 June 1964.  He was apprehended by military police on 
21 June 1964 and placed in confinement.  He remained in confinement until 
25 July 1964.

5.  On 27 July 1964, the FSM accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave for 1 day.  The punishment included a forfeiture of $20 pay per month for 
1 month, and 10 days restriction and extra duty.

6.  From 1 to 24 August 1964, the FSM was AWOL.  He was AWOL again on 
1 September 1964.

7.  On 2 October 1964, the FSM was apprehended by civil authorities for breaking and entering.  He was subsequently convicted and sentenced to 3 1/2 to 10 years confinement in prison.

8.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 5 May 1965, under the provisions of Army Regulation 635-206, for conviction by civil court.  His service was characterized as under conditions other than honorable.  He had completed 8 months and 1 day of creditable active duty and had 306 days of lost time due to AWOL and confinement.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

11.  Under the UCMJ, the maximum punishment allowed for violation of 
Article 130, for housebreaking, [applies to a building that is not an occupied dwelling] is a dishonorable discharge and confinement for 5 years.

12.  The Michigan State Corrections Record provided by the applicant does not show any criminal activity for the FSM prior to his enlistment in the Regular Army.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  There is no evidence showing that the FSM was ineligible for enlistment or that he had a criminal record or other problems to consider at the time of his enlistment.  Furthermore, the FSM was able to complete his initial training and serve satisfactorily during the first 8 months of his active duty service.  This demonstrated a capacity for honorable service.

3.  There is no evidence showing that the FSM's subsequent and/or current inabilities were the proximate cause of his civilian conviction and undesirable discharge. 

4.  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 the aforementioned requirement.

5.  In view of the above, the applicant's request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ DWT___  __DLL __  __GJP   _  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.





_       Gerald J. Purcell ____
          CHAIRPERSON




INDEX

CASE ID
AR20070012683
SUFFIX
 
RECON
 
DATE BOARDED
20080124  
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
   . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.