IN THE CASE OF:	 

		BOARD DATE:	      9 December 2008

		DOCKET NUMBER:  AR20080016222 


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, upgrade of his general discharge to an honorable discharge.

2.  The applicant states, in effect, that he was unaware that he could have his discharge upgraded.

3.  The applicant provides no additional documentary 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, and 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 on 12 May 1969.  He completed basic training.  He completed Basic Combat Training (BCT) and was assigned to Advanced Individual Training (AIT).  However, he immediately departed from his unit in an absent without leave (AWOL) status and was subsequently dropped from the rolls as a deserter.  The highest rank he attained while serving on active duty was private (PV1)/pay grade E-1.  His only duty station was at Fort Knox, Kentucky.

3.  The applicant was arrested by civil authorities for grand larceny (Felony) on 
28 October 1969.  He was sentenced to confinement for not less than one or more than ten years in the West Virginia Penitentiary.

4.  On 23 December 1969, the applicant was notified by his commander that he was being recommended for separation because of his civil conviction.  The applicant acknowledged receipt of the notification.

5.  On 30 March 1970, the applicant met with counsel and was advised of his rights.

6.  On 22 May 1970, a board of officers was convened and it was determined that the applicant should be discharged from the Army under the provisions of 
Paragraph 33, Army Regulation 635-206 (Personnel Separations), due to conviction by civil court and furnished a General Discharge Certificate.

7.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  The regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them, which is tantamount to a finding of guilty, or an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), governs the policies and procedures 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's misconduct as a result of a conviction by a civil court is not in keeping with the standards expected of a Soldier.  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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  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.



      _____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)                                         AR20080016222



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ABCMR Record of Proceedings (cont)                                         AR20080016222



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