IN THE CASE OF:	  

	BOARD DATE:	  29 July 2008

	DOCKET NUMBER:  AR20080006072 


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, in effect, that his records be corrected by removing his felony conviction.  He also requests that the Separation Program Number (SPN) Code of 264 be removed from his separation document (DD Form  
214) and that his discharge be upgraded to an honorable discharge.

2.  The applicant states that he was never convicted of a felony and he was given a general discharge.

3.  He states that he was in Fort Jay, New York, when he asked to be assigned to another unit.  They first agreed to assign him to another unit.  However, when they saw a page in his military personnel records which shows he was convicted of a felony, he was discharged.  He wanted to make the military a career.  He saw the SPN code 264 in his records so he sent for his military personnel records to see what was in it, but the page was no longer there.  It wasn't until his Congresswoman sent for the files last year that the conviction showed up in his record.

4.  The applicant provides a copy of his DD Form 214, personal statement, and an extract from his Service Records.

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's military personnel record shows he initially enlisted in the Regular Army on 26 March 1963 for 3 years and immediately reenlisted on  
13 July 1964 for 6 years.  He completed the necessary training and was awarded the military occupational specialty (MOS) 941.10 (Cook) and 422.10 (Field Artillery Repairman).

3.  Between 29 October 1963 and 29 July 1964, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on two occasions for wrongfully breaking three windows in a Baby Wagon Taxi belonging to "Yi, Yong Ok," being drunk to the extent of incoherent speech, and violating a lawful regulation (Pass and Curfew Regulation).

4.  He was arrested by the New York City Police Department on 9 May 1965 and was charged with grand larceny auto and burglar tools.  On 25 May 1965, the charge was reduced to unauthorized use of auto.  The applicant was placed on  
30 days "WH" suspended sentenced.

5.  Item 6 (Time Lost) of his Service Record shows he was confined from 15 May 1965 to 24 May 1965 and was absent without leave (AWOL) during the periods 30 May 1965 to 4 June 1965 and 9 June 1965 to 24 August 1965.  He was again confined from 9 September 1965 to 28 October 1965.

6.  On 16 September 1965, the applicant was convicted by a special court-martial of two specifications for being AWOL during the periods 30 May 1965 to 5 June  
1965 and 9 June 1965 to 3 August 1965.  His punishment consisted of confinement for 3 months and a forfeiture of $83.00 per month for 3 months,  
1 month of the sentence to confinement and a forfeiture of $83.00 was suspended for 5 months unless the suspension was sooner vacated.
7.  On 20 October 1965, the applicant received a psychiatric examination and was found to be mentally responsible to both distinguish right from wrong and to adhere to the right if so inclined.

8.  On 16 November 1965, the applicant's commander recommended separation under the provisions of Army Regulation 635-209 (Personnel Separation), paragraph 3b, character and behavior disorder.  He was advised that if his recommendation was approved the proposed separation could result in a General Discharge under honorable conditions.  The applicant acknowledged receipt of the recommendation.  He waived his right to a hearing before a board of officers, declined the opportunity of representation by counsel, and did not submit a statement on his on behalf.

9.  On 24 November 1965, the recommendation for separation was approved by the appropriate authority.

10.  On 24 November 1965, the applicant was given a General Discharge Certificate.  He was assigned SPN 264 which denotes character and behavior disorder.  He had completed a total of 2 years and 4 months of Total Active Service and accrued 121 days of lost time.

11.  A letter from Headquarters, Department of the Army, Office of the Adjutant General, dated 21 June 1965, addressed to the Commanding General of Fort Lewis, Washington, directed that the Federal Bureau of Investigation (FBI) record be filed in the Adjutant General Personnel Center (AGPERSCEN).

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

13.  Army Regulation 635-209 (Personnel Separations), in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  

14.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when

16.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  Table 2-1 of the regulation states that you file record of civil convictions and related records or arrest or extracts of them that are authenticated by civil authorities on the performance (P) fiche of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his felony conviction and SPN code 264 should be removed from his records and his discharge be upgraded to an honorable discharge.

2.  However, his discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an under honorable conditions discharge for character and behavior disorder.

3.  The evidence shows that the applicant was convicted by a special court-martial of two specifications for AWOL during the periods 30 May 1965 to 5 June 1965 and 9 June 1965 to 3 August 1965 for a total of 121 days time lost.  The applicant was also charged with grand larceny, but the charge was reduced to unauthorized use of auto, 30 days "WH" suspended sentence.  

4.  Although, the charge was suspended for 30 days the correspondence was directed to be filed in the AGPERSCEN.  Army Regulations state that you file records of civil convictions, related records or arrests or extracts that are authenticated by civil authorities on the performance (P) fiche of the OMPF.  Therefore, the records of conviction and related records shall remain filed in the applicant's OMPF.

5.  Since the applicant was properly discharged and appropriately assigned a SPN code of 264 there is no basis to grant his request.

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

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)                                         AR20080006072



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ABCMR Record of Proceedings (cont)                                         AR20080006072



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