IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080010844 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that his discharge was improper because his pre-service civilian conviction properly listed on his enlistment documents was used in the discharge proceedings.  He contends that he is sorry for his actions, that his intention was to be a great Soldier, and that he was a good Soldier for one year, two months, and 20 days.  

3.  The applicant provides no additional evidence 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 enlistment contract, dated 24 January 1968, shows that he reported “No” for any prior arrests or convictions.  He enlisted on 24 January 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11C (indirect fire crewman).

3.  On 12 February 1968, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

4.  On 2 October 1968, the applicant was convicted of burglary and defacing public property and he was sentenced to serve two years.    

5.  On 26 February 1970, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 for conviction by civil court.  On 
18 March 1970, he waived consideration of his case by a board of officers, he waived representation by counsel, and he elected not to submit a statement on his own behalf.  He also indicated that he did not intend to appeal his conviction. He also acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable were issued, that he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.  

6.  On 10 April 1970, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.  

7.  Accordingly, the applicant was discharged on 13 April 1970 with an undesirable discharge under the provisions of Army Regulation 635-206 for conviction by civil court.  He had served 1 year, 2 months, and 20 days of creditable active service.    

8.  On 13 February 1973, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.    

9.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally considered appropriate.  


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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that his discharge was improper because his pre-service civilian conviction properly listed on his enlistment documents was used in the discharge proceedings.  His enlistment contract does not show any civilian conviction.  Evidence of record shows that the applicant was convicted of burglary and defacing public property on 2 October 1968.  He enlisted on 24 January 1968.

2.  The applicant’s record of service included one nonjudicial punishment.  It appears he also committed a serious civil offense (burglary) while in the Army.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  The applicant’s administrative separation, for a post-enlistment civil conviction, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.



      _________xxxx_________
               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)                                         AR20080010844



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ABCMR Record of Proceedings (cont)                                         AR20080010844



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