IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090003539 


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 the Dishonorable Discharge of her deceased husband, hereafter referred to as the former service member (FSM), be removed.

2.  The applicant states the FSM was a good Soldier, with two tours of duty in Germany.  While on recruiting duty in the United States, he incurred gambling debts which he was unable to pay.  The people to whom he owed the gambling debt threatened his family, so he robbed a liquor store and was caught and convicted.  While in civilian prison, the Army discharged him.

3.  The applicant further states the FSM worked hard all his life as a coal miner until poor health forced him to retire.  He was a proud man and he knew he’d done a horrible thing which cost him his military career, but he still loved his country and the Army.  The applicant indicates their son served proudly in Iraq in 2005 and it is important to the family that the FSM’s Dishonorable Discharge be overturned.

3.  The applicant provides a copy of the FSM’s Certificate of Death issued by the Commonwealth of Kentucky.  The applicant is listed as the FSM’s spouse on that form.

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 FSM does not have a Dishonorable Discharge; he was issued a DD Form 258A, Undesirable Discharge.

3.  The FSM was born on 4 April 1934 in Muhlenberg County, Kentucky.  On 9 March 1954, he was inducted into the Army of the United States for 2 years.  He was separated on 19 December 1955 in order to enlist in the Regular Army, receiving an Honorable Discharge.

4.  The FSM enlisted in the Regular Army for 3 years on 20 December 1955.  He served until 5 October 1958, when he received a second Honorable Discharge for the purpose of immediate reenlistment in the Regular Army.

5.  On 6 October 1958, the FSM reenlisted in the Regular Army for a period of 6 years.  At that time, he was a Specialist Five (SP5/E-5) serving as a personnel specialist.

6.  On 11 June 1962, the FSM released from duty and placed in civil confinement in Birmingham, AL pending completion of an investigation of alleged armed robbery.  On or about 7 December 1962, he was convicted of armed robbery and sentenced to confinement at Kilby Prison, Montgomery, AL.  On the same date, he was discharged from the Regular Army under the provisions of Section III, Army Regulation 635-206, by reason of conviction by a civil court.  He was reduced to the rank of Private (PVT/E-1) and issued an Undesirable Discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 4 years 2 months and 2 days of creditable service on his 6-year enlistment, and a total of 8 years and 9 months of creditable service overall.  He had approximately 3 years of overseas service in Germany and 1 year in Korea.

7.  Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an Undesirable Discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the FSM’s Dishonorable Discharge be overturned.  As stated, the FSM did not receive a Dishonorable Discharge; he received an Undesirable Discharge based on his civil conviction and resultant confinement by civil authorities.

2.  The FSM’s post-service hard work as a coal miner is acknowledged.  His love of country and his respect for the Army are commendable; however, the record shows he was arrested by civil authorities in Birmingham, AL and was tried and convicted in civil court.  His prison sentence required the Army to discharge him under the provisions of Army Regulation 635-206 with an Undesirable Discharge.

3.  The FSM had several years of proud service to his country and he received two Honorable Discharges.  However, his last period of service was marred by a very serious criminal act which, unfortunately rendered that period of service as under other than honorable conditions. 

4.  The FSM’s administrative separation was accomplished in compliance with applicable regulations then in effect, with no indication of procedural errors which would tend to have jeopardized his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  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.




      _______ _   _X______   ___
               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)                                         AR20090003539





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ABCMR Record of Proceedings (cont)                                         AR20090003539



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