IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080010504 


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 undesirable discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he believed he was signing papers for an honorable discharge, and he was told he would not get a bad discharge.  He also states that he guesses he did not know what he was signing, as he was only 
19 years old at the time.  He further states that he only made one mistake, and that he does not believe that he should have been treated so severely.  He continues by stating that he served 2 years and 1 month of his 3-year enlistment with 15 months of this overseas.  One night, he and a friend went out drinking, had too much to drink, and got into an argument with two other men.  He also states that he and his friend were charged with assault with intent to commit a felony.  He reiterates that he does not remember what papers he signed, but knows that he was told he would receive an honorable discharge.  Additionally, he states that he should have had some kind of trial by the Army, but did not.  He also states that since his discharge, he has married, raised five children, and never been in serious trouble, but has had a hard time getting good jobs for 
50 years.  He also states that he worked hard to raise five children and he is asking for his discharge to be upgraded so his children and grandchildren will know that he served his country honorably.  He concludes by stating that he was only 19 years old and knows this would never have happened if he had not been drinking at the time.

3.  The applicant provides a two-page, self-authored statement; page 5 of a Self-Help Guide to Discharge Upgrading; a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); and a letter, dated 30 May 2008, from the Army Review Boards Agency Support Division in St. Louis, Missouri in support of this 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.  A portion of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

3.  The available records show that the applicant enlisted in the Regular Army on 10 February 1956.  He completed initial entry training and was awarded military occupational specialty (MOS) 111 (Light Weapons Infantryman), and was later awarded MOS 113 (Infantry Operations and Intelligence Specialist).  He departed for a tour in Korea on 2 August 1956 and served with Headquarters and Headquarters Company, 21st Infantry Regiment.

4.  On 13 August 1957, the applicant was convicted by a summary court-martial for violating a lawful general regulation by being in an off-limits area and resisting lawful apprehension on or about 2 August 1957.  He was sentenced to a reduction in rank and pay grade from private first class/E-3 to private/E-2, a forfeiture of $50.00 pay per month for 1 month, and 45 days of restriction.  He returned to the continental United States on 16 November 1957, and was reassigned to Fort Riley, Kansas.

5.  On 15 March 1958, the applicant was arrested by civil authorities in Junction City, Kansas while on authorized pass and charged with felonious assault.  On 24 April 1958, the applicant waived arraignment and entered a plea of guilty to felonious assault, and he was sentenced to 6 months in the County Jail of Geary County, Kansas.  

6.  Although the applicant's complete separation proceedings are not available, on 20 May 1958 his commanding officer recommended that he be discharged from the military service under the provisions of Army Regulation 635-206 (Discharge:  Misconduct [Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion]) by reason of conviction by civil court of the crime of felonious assault and sentence to imprisonment for a period of 
6 months.  The available records also contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that the applicant was discharged under the provisions of Army Regulation 635-206 due to conviction by a civil court on 16 June 1958 and that he was issued a DD Form 258A (Undesirable Discharge Certificate).  

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, set forth the basic authority for the administrative separation of enlisted personnel who had committed an act or acts of misconduct (i.e., fraudulent entry, conviction by civil authorities, absence without leave and desertion).  An undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

10.  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 the reason for the Soldier’s separation specifically allows such characterization.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  The applicant's contentions were carefully considered; however, 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.

3.  The fact that the applicant believed he was signing papers for an honorable discharge was noted; however, he is not entitled to an honorable discharge merely because he believes he was signing papers for one.  

4.  Although all of the facts and circumstances pertaining to the applicant’s discharge are not in his military records, it is clear that the applicant was convicted by a civil court after he pled guilty to felonious assault and that he was discharged under the provisions of Army Regulation 635-206 due to his conviction by a civil court.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  The evidence shows that the applicant was convicted by a summary court-martial for violating a lawful general regulation by being in an off-limits area and resisting lawful apprehension on or about 2 August 1957.  He was also convicted by a civil court of felonious assault and sentenced to 6 months confinement.  As a result, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.






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.



      ________XXX______________
               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)                                         AR20080010504



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ABCMR Record of Proceedings (cont)                                         AR20080010504



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