IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090001668 


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, an upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states that prior to and during his military service, he experienced the death of several members of his immediate and extended family, which filled him with sadness and grief.

3.  The applicant provides three character reference letters, dated 15 December 2008, in support of his request. 

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 records show he enlisted in the Regular Army for a period of 3 years on 22 January 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64A (Light Vehicle Driver).  The highest rank/grade he attained during this period of military service was private first class (PFC)/E-3.

3.  The applicant's records show he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. His records do not show any significant acts or achievements during his military service.

4.  On 22 August 1968, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for on or about 20 August 1968 wrongfully appropriating a 1/4 ton government utility truck of a value of $2,280.00.  His punishment consisted of 30 days of extra duty.

5.  On 20 November 1968, the applicant was arrested by civil authorities in Hopewell, VA, for the civil charges of one count of burglary and four counts of grand larceny.  He subsequently appeared in the Circuit Court of Hopewell, VA, and was sentenced to four years of imprisonment. 

6.  On 22 May 1969, the applicant’s immediate commander issued a letter of intent in which he notified the applicant of his intent to initiate elimination from the service action against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) by reason of misconduct.  He remarked that this action was necessary due to the gravity of the charges against him, the sentence of four years imprisonment, and his past record of discreditable actions with civil and military authorities.  

7.  On 18 August 1969, after a delay due to illness, the applicant acknowledged receipt of the separation memorandum and was advised of the basis for the contemplated separation for misconduct-conviction by civil court, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board, declined making a statement on his own behalf, and waived representation by his appointed counsel.

8.  The applicant also acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result 
of the issuance of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws. 

9.  On 30 July 1969, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-206.  The applicant's commander remarked that the applicant had been convicted by the Hopewell City Court, Hopewell, for one count of breaking and entering and three counts of grand larceny, and was sentenced to four years of imprisonment.

10.  On 1 August 1969, the applicant's intermediate commander recommended approval of the applicant's elimination with the issuance of an Undesirable Discharge Certificate.

11.  On 7 August 1969, the applicant's senior commander also recommended approval of the applicant's elimination with the issuance of an Undesirable Discharge Certificate.

12.  On 4 September 1969, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206 by reason of unfitness due to misconduct and directed the applicant be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade. The applicant was accordingly discharged on 15 September 1969.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged with a character of service of under conditions other than honorable.  This form further confirms he completed a total of 10 months and 7 days of creditable active military service and had 292 days of lost time.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

14.  The applicant submitted three character reference letters, dated 15 December 2008, from members of the Dallas Church of God as follows:

	a.  the church treasurer states that he has known the applicant for over 10 years and that he (the applicant) experienced the death of several family members at the time of his military service. The treasurer also comments on the applicant's good standing in the church;



	b.  the church pastor states that the applicant had not been in any trouble in the 10 years he (the pastor) has known him.  The pastor adds that the applicant was a young boy at the time and clearing up his military discharge status would be the right thing to do; and

	c.  a member of the church states that he also has known the applicant for 10 years and that the applicant is a good person with good work ethics.

15.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of the regulation provided, in pertinent part, that members who have been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to The Adjutant General.  Furthermore, paragraph 33 of Army Regulation 635-206 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

17.  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 applicant’s contends that his undesirable discharge should be upgraded to a general, under honorable conditions discharge.
2.  The evidence of record shows that the applicant was convicted by a civil court for the grave charges of breaking and entering and larceny and was sentenced to four years of imprisonment.  The evidence of record further shows that the applicant's immediate commander initiated separation action against him and that he was accordingly notified.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable 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)                                         AR20090001668



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ABCMR Record of Proceedings (cont)                                         AR20090001668



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