IN THE CASE OF:	

		BOARD DATE:	        21 October 2008

		DOCKET NUMBER:  AR20080011567 


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 honorable.

2.  The applicant states that he did not commit any offense against the military.  He contends that he was absent without leave (AWOL) because of civil offenses for which he was given a full pardon.  He points out that he was 18 years old at the time, that he has been gainfully employed since his release from prison in 1959, that he received a high school diploma in 1964, that he is married with three children, that he attends church, and that he was granted a full pardon by the Governor of Tennessee in 1975 for the offenses which led to his discharge.    
3.  The applicant provides a High School diploma and a Pardon (Felony), dated 
8 August 1975, 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 military records are not available to the Board.  This case is being considered using reconstructed records, which primarily consist of the Army Discharge Review Board (ADRB) proceedings.

3.  The applicant was born on 22 January 1937.  Having prior service in the Army National Guard, he enlisted in the Regular Army on 24 March 1954 for a period of 3 years.  On 22 May 1955, he was honorably discharged for immediate reenlistment.  He reenlisted on 23 May 1955 for a period of 3 years.  

4.  Reconstructed records show the applicant was AWOL from 19 September 1955 to 23 September 1955.  He was subsequently arrested on unrelated charges and confined by civil authorities on 24 September 1955.

5.  On 29 September 1955, the applicant was convicted of two counts of robbery and sentenced to five years confinement.  

6.  On 19 October 1955, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 615-366 for conviction by civil court.

7.  On 1 November 1955, the separation authority approved the recommendation for discharge.

8.  Accordingly, the applicant was discharged on 15 November 1955 with an undesirable discharge under the provisions of Army Regulation 615-366 for civil conviction.  He had served a total of 1 year, 5 months, and 24 days of creditable active service with 57 days of lost time due to AWOL and confinement.

9.  On 10 July 1962, the ADRB denied the applicant’s request for an honorable discharge.

10.  On 8 August 1975, the applicant received a full pardon from the Governor of Tennessee for his robbery conviction on 9 September 1955.  The certificate states, in pertinent part, that “The Board, after receiving numerous letters of recommendation attesting to [applicant’s last name] outstanding civilian record, granted him a hearing (non-appearance) before the Board on May 8, 1975.”  It also stated he was found guilty of robbing some serviceman.

11.  Army Regulation 615-366, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct due to fraudulent entry, absent without leave, desertion, and conviction by civil court.  Section IV (Conviction by Civil Court), paragraph 15a provided that discharge authorities would discharge individuals who, during their term of service, were convicted by a civil court for a criminal offense or adjudged a youthful offender and sentenced to death or imprisonment for a term exceeding one year.  The regulation also provided that an individual discharged due to conviction by civil court or having been adjudged a youthful offender would be furnished an undesirable discharge certificate.

12.  Army Regulation 635-200 is the current regulation governing 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.  

13.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, it appears he successfully completed basic combat and advanced individual training.  In addition, he completed 14 months during his first enlistment and he received an honorable discharge.

2.  Although the applicant was granted a full pardon in 1975 for his outstanding civilian record by the Governor of Tennessee, good post-service alone is not a basis for upgrading a discharge.  

3.  The applicant’s record of service included 57 days of lost time.  It appears he also committed a serious civil offense (robbery) while in the Army.  It appears the offense of which he was convicted was committed against fellow Soldiers.  As a result, his record of service was not satisfactory and did not meet the standards 
of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

5.  The type of discharge directed and the reasons therefore 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)                                         AR20080011567



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ABCMR Record of Proceedings (cont)                                         AR20080011567



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