IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012476 


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, in effect, that he was arrested for a minor civil case and that he was trying to get back to base.  He states that it is also his understanding that a discharge upgrade is automatically given.

3.  The applicant provides in support of his application, a letter from the National Personnel Records Center dated 18 July 2008, informing him that his application was being forwarded to this agency.

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.  On 7 December 1971, the applicant enlisted in the Regular Army in Newark, New Jersey, for 2 years in the pay grade of E-1.  

3.  The applicant was in basic combat training when he went absent without leave (AWOL) on 10 January 1972.  His records show that while he was AWOL, he was apprehended and convicted by civil authorities on 20 January 1972 of breaking and entering a motor vehicle with the intent to commit larceny.  He was sentenced to confinement for 1 year.

4.  He was subsequently convicted by civil authorities on 5 February 1972 of escape.  His records indicate that he was sentenced to an additional 6 months as a result of this crime.  

5.  The applicant’s records show that he returned to military control on 10 October 1972.

6.  On 5 January 1973, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-206, for misconduct, due to conviction by civil authorities.  He acknowledged receipt of the notification on 5 January 1973, and he indicated that he did not intend to appeal his civil conviction.

7.  The appropriate authority approved the recommendation for discharge on 21 February 1973 and recommended the issuance of an Undesirable Discharge Certificate.  Accordingly, on 2 March 1973, the applicant was discharged under the provisions of Army Regulation 635-206, for misconduct, due to conviction by civil authorities.  His Report of Transfer or Discharge (DD Form 214) shows that he had completed 27 days of total active service and he had 424 days of lost time.  He was furnished an Undesirable Discharge Certificate.

8.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-206, then in effect, outlined the conditions and procedures for the discharge of enlisted personnel for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.


DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, his records clearly show that he was convicted by civil authorities for breaking and entering a motor vehicle with the intent to commit larceny and he was sentenced to confinement for 1 year.  Shortly thereafter, he escaped and after being apprehended he was convicted and sentenced to an additional 6 months.  While he believes that his crimes were minor, they were of such a degree that he was sentenced to confinement.  

4.  In regard to the applicant’s “understanding” that discharge upgrades are automatically given, discharge upgrade are not automatic and he has provided no evidence that is substantial enough to support upgrading his discharge.  

5.  The applicant’s records show that he has only 27 days of total active service and he has 424 days of lost time as a result of his acts of indiscipline.  Considering the nature of his offenses, it does not appear that his undesirable discharge was too severe.  

6.  In order to justify correction of a military record the applicant must show 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.  

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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)                                         AR20080012476



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ABCMR Record of Proceedings (cont)                                         AR20080012476



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