IN THE CASE OF:	  

		BOARD DATE:	  14 July 2009

		DOCKET NUMBER:  AR20090004033 


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 that he was sent to prison for nothing.  He alleges that the checks sent to him belonged to his father.  

3.  The applicant provides a personal statement 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 enlisted in the Regular Army on 3 July 1972 for a period of three years.  He was assigned to Fort Ord, CA for basic combat training.  

3.  On 15 August 1972, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for assaulting two privates.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 6 September 1972 to 24 August 1973.  

5.  On 26 September 1973, the applicant was found guilty by the Criminal District Court Number 4 of Dallas County, Texas Court, for passing forged instruments (3 counts) and theft over $50.00 (3 counts).  He was sentenced to two years confinement.  

6.  On 21 March 1974, the unit commander notified the applicant of his recommendation for his discharge under the provisions of Army Regulation
635-206 by reason of misconduct - conviction by a civil court.  He was advised of his rights.  The applicant acknowledged notification.  

7.  On 3 April 1974, the applicant consulted with legal counsel, waived consideration of his case before a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.  He waived his right to appeal his civilian conviction.  

8.  On 9 April 1974, the unit commander recommended that the applicant be discharged from the military.

9.  On 10 April 1974, the intermediate commander recommended approval.  

10.  On 11 April 1974, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-206 with issuance of an Undesirable Discharge Certificate.

11.  The applicant was discharged from active duty on 22 April 1974.  He completed 2 months and 3 days of creditable active service.  He had 594 days of lost time due to AWOL and civil confinement.  

12.  The applicant provided a personal statement in support of his claim.  He stated that he received a dishonorable discharge in April 1974 for the wrong reason.  He came home on a weekend from Fort Hood, TX and was picked up by Dallas Police.  He stated he was put in jail for stolen checks and "hot" checks, but the checks belonged to his father at the time, who is now deceased.  The person who pressed charges against him had a couple of grocery stores at that time.  He received a 2-year sentence and stayed in prison for 10 months with a 3-month probation.  He also stated that the Military Police never came to pick him up and to transfer him to Fort Hood, TX.  He received a dishonorable discharge while he was in prison.  He continued to state that he was a real young man when this incident happened.  A lot of things have happened to him since that time.  His 26-year marriage ended, he had two heart bypasses, and he stays at the Salvation Army.  He is now 54 years old and would like another kind of discharge to receive benefits.  

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.  

14.  Army Regulation 635-206, in effect at that 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).  That 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, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  

15.  Army Regulation 635-200 sets forth the basic authority 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.

16.  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 contends that he was sent to prison for nothing and the checks sent to him belonged to his father.  However, there is no evidence of record to substantiate his claim. 

2.  The applicant was found guilty by a civil court in September 1973 for passing forged instruments (3 counts) and theft over $50.00 (3 counts).  He was sentenced to two years confinement.

3.  The applicant's service record shows one Article 15 for assault and he was confined by civil authorities for a total of 241 days.  As a result, 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, he is not entitled to either a general discharge or an honorable discharge.

4.  It appears the appropriate approving authority determined that the applicant's overall military service warranted an undesirable discharge.  

5.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  

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)                                         AR20090004033





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ABCMR Record of Proceedings (cont)                                         AR20090004033



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