IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20090004628 


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, that his undesirable discharge be upgraded to a general discharge. 

2.  The applicant states, in effect, that an upgrade of his discharge should be considered as due process of his rights.  He also states he had a civil conviction in 1968.   

3.  The applicant provides no additional documentation 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's military record shows he was inducted into the Army of the United States, in pay grade E-1, on 17 August 1967, with a waiver of moral eligibility for induction (civil offenses).  He completed basic and advanced individual training and was awarded military occupational specialty 94B, Cook.

3.  On 8 September 1967, the applicant was convicted by summary court-martial of one specification of leaving his appointed place of duty without authority on 3 September 1967.  He was sentenced to confinement at hard labor for 1 month and a forfeiture of $60.00 pay for 1 month.  The sentence was adjudged on 8 September 1967.  The sentence was approved on 9 September 1967; however, that portion of the sentence adjudging confinement at hard labor for 
1 month was suspended for 45 days. 

4.  The applicant was reported absent without leave (AWOL) on 2 January 1968 and dropped from the rolls as a deserter on 31 January 1968.  

5.  The applicant was convicted on 11 June 1968 of larceny (breaking and entering) by the Circuit Court for the County of Wayne, Michigan, and sentenced to confinement for 1 1/2 to 4 years.

6.  On 7 August 1968, the applicant was notified of his company commander's proposed action to discharge him under the provisions of Army Regulation 
635-206, due to a civil conviction.  

7.  On 14 August 1968, a Report for Suspension of Favorable Personnel Actions was initiated against the applicant based on confinement by civilian authorities at the Southern Michigan State Prison, Jackson, Michigan, due to being convicted of breaking and entering.  

8.  On 15 August 1968, the applicant, through counsel, acknowledged receipt of notification of the proposed discharge action due to civil conviction.  He acknowledged that he could be issued an undesirable discharge.  He waived his rights as an individual confined by civil authorities and elected not to submit a statement in his own behalf.

9.  On 4 September 1968, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-206, for conviction by civil court.  The company commander stated that the applicant was convicted on 11 June 1968 of larceny and received a sentence of confinement for 1 1/2 to 4 years and he was presently confined at the Southern Michigan State Prison.


10.  On 18 October 1968, the Commander, Headquarters Command, Fort Sheridan, Illinois, recommended approval of the company commander's discharge of the applicant with an Undesirable Discharge Certificate.

11.  On 28 October 1968, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, for Civil Conviction, with an undesirable discharge.

12.  The applicant was discharged on 1 November 1968, in pay grade E-1, under the provisions of Army Regulation 635-206, for a civil conviction with an Undesirable Discharge Certificate.  He was credited with completing 4 months and 11 days of net active service and he had 304 days of lost time from
2 January to 1 November 1968.

13.  On 30 January 1979, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

14.  Army Regulation 635-206 (Conviction by Civil Court), 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 Uniformed Code of Military Justice included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted an undesirable discharge was considered appropriate.

15.  Army Regulation 635-200 (Enlisted Separation), governs the policies and procedures for separation of enlisted personnel.  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 contentions have been considered; however, in view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The available evidence shows the applicant was recommended for discharge with an undesirable discharge by reason of civil conviction.  The applicant, after consulting with counsel, acknowledged that he could receive an undesirable discharge, waived his rights, and elected not to submit a statement in his own behalf.  
3.  The available evidence also shows the applicant was in civil confinement during the processing of his separation as he had been sentenced to 1 1/2 to 4 years and he was confined at a state prison.  It is apparent that his command ensured that the proper documents were prepared and signed by the proper authorities to ensure that he was discharged in accordance with Army Regulation 635-206, for civil court conviction.  

4.  There is nothing in the available records and the applicant did not provide any evidence to show that he was denied due process or that his rights were violated. 

5.  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.

6.  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

____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)                                         AR20090004628



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ABCMR Record of Proceedings (cont)                                         AR20090004628


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