IN THE CASE OF:	  

		BOARD DATE:	  7 August 2008

		DOCKET NUMBER:  AR20080007368 


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, an upgrade of his undesirable discharge (UD).   

2.  The applicant states, in effect, he was young and did not consider the consequences of his actions at the time.  He was convicted in civilian court and sentenced to 23 months in prison and now understands the impact of his action.  He states that this is stigma his family should not be faced with and his belief that he has paid his debt to society.  

3.  The applicant provides a criminal history check and character references in support of 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's record shows he was inducted into the Army and entered active duty on 22 January 1964.  His record shows that while serving on active duty, he never advanced beyond the rank of private/E-1 (PV1), did not complete training, and was never awarded a military occupational specialty (MOS).  There are no acts of valor, significant achievement, or service warranting special recognition documented in his record.  

3.  On 20 April 1964, while still in advanced individual training at Fort Gordon, Georgia, the applicant was reported absent without leave (AWOL) from his organization.  

4.  On 12 May 1964, the applicant was found guilty of interstate transportation of a stolen motor vehicle in a civilian court, and was sentenced under the Youth Corrections Act, for an indeterminate period up to 6 years (imprisonment or parole).

5.  The applicant was processed for elimination under the provisions of Army Regulation 635-206, and on 9 July 1964, the separation authority approved his discharge and directed he receive an UD.  On 23 July 1964, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time shows he completed 2 months and 28 days of creditable active military service and had accrued 95 days of time lost due to AWOL and civil confinement.

6.  The applicant also provides a criminal record search from State of North Carolina, that lists one offense of possession of wildlife without a license.  No other offenses are listed.  He also provides three character references from an employer and coworkers, who all attest to his good character and work ethic.  

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

8.  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 VI 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.  The separation authority could issue an honorable discharge or general, under honorable conditions discharge if it were warranted based on the member's record of service.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he has paid his debt to society, that his family should not have to face the stigma of his discharge, and that he has been a good citizen since his discharge were carefully considered.  However, these factors alone are not sufficiently mitigating to support granting the requested relief.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

2.  Further, the applicant's discharge accurately reflects his short and undistinguished record of service, which did not support the issue of an HD or GD by the separation authority at the time of his discharge, and does not support an upgrade of his discharge at this time.  Although the applicant's post-service conduct is noteworthy, 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

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)                                         AR20080007368



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ABCMR Record of Proceedings (cont)                                         AR20080007368


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