DOCKET NUMBER:  AR20090005661 


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, under honorable conditions, discharge. 

2.  The applicant states that he did not want to be discharged and he was ready to serve in Vietnam.  He feels his sergeant treated him unfairly in response to his dumb youthful actions.  

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 

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 records show he enlisted in the Regular Army (RA), in pay grade E-1, on 28 October 1966, for 3 years.  On the date of his enlistment in the RA, the applicant was 17 years and 8 months of age.  He did not complete advanced individual training; therefore, he retained his military occupational specialty of 09B (basic trainee).  The highest pay grade the applicant held during his period of service was pay grade E-1.

3.  The applicant was reported absent without leave (AWOL) on 3 January 1967 and dropped from the rolls as a deserter on 20 January 1967.  He was returned to military control on 20 January 1967 and again departed AWOL on the same day.  He was returned to military control on 24 January 1967.

4.  On 9 February 1967, the applicant was convicted by summary court-martial of two specifications of AWOL from 3 to 20 January 1967 and from 20 to 24 January 1967.  He was sentenced to confinement at hard labor for thirty days and a forfeiture of $60.00 pay for one month.  The sentence was adjudged on 9 February 1967.  The sentence was approved on 10 February 1967; however, only so much of the sentence as provided for confinement at hard labor for twenty days and a forfeiture of $25.00 pay was approved.

5.  The applicant was again reported AWOL on 13 March 1967 and returned to military control on 11 April 1967.  He was reported AWOL on 8 May 1967 and dropped from the rolls as a deserter on the same day.

6.  A Military Police Report, dated 22 May 1967, shows the applicant was apprehended on 13 May 1967 by the Sheriff's Department, Hoover Lake, Mississippi, for violation of the Dyer Act, Breaking Arrest (Civil Charges), and confined pending further disposition.  At the time of his arrest, the applicant was 18 years of age.

7.  On 24 July 1967, the United States District Court for the Southern District of Mississippi convicted the applicant of transporting and causing to be transported in interstate commerce a stolen motor vehicle.  He was sentenced to confinement for 5 years.

8.  On 31 January 1968, the applicant, through counsel, acknowledged receipt of notification of the proposed discharge from the service for civil conviction.  He waived his rights to have his case considered by a board of officers as an 
individual confined by civil authorities and elected not to submit a statement in his own behalf.  He acknowledged that he could be issued a general or an undesirable discharge and the effects of the issuance of either discharge.  

9.  On 6 February 1968, the applicant's company commander requested the applicant be eliminated from the service under the provisions of Army Regulation 635-206.  The company commander stated that in view of the applicant's poor military records as characterized by his civilian conviction and his record of time lost, he did not consider the applicant an asset to the service.  The company commander also stated that he did not recommend a waiver of his civilian conviction for the purpose of permitting him to continue on active duty.  He also recommended the applicant be furnished an undesirable discharge.

10.  On 6 February 1968, the applicant's battalion commander recommended the applicant be discharged for conviction by civil court.  The battalion commander stated that in view of the applicant's poor military record, characterized by an excessive amount of lost time in addition to his civil conviction, it was recommended that he be issued a issued an Undesirable Discharge Certificate. The battalion commander also stated that the applicant had indicated in writing that he did not intend to appeal his civil conviction.

11.  On 16 February 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 26 February 1968, in pay grade E-1, under the provisions of Army Regulation 635-206, for a civil conviction.  His character of service was shown as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He was credited with 3 months and 11 days net active service and with 378 days of lost time.

13.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations 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 (Personnel Separations - Enlisted Separations), then in effect, governed the policies and procedures for separation of enlisted personnel.  Paragraph 3-7b of that regulation provided that a general discharge was 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.  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 applicant's contention that he was treated unfairly due to his youthful actions has been noted.  The applicant was 17 years and 8 months of age when he enlisted in the RA and was 18 years of age when he went AWOL.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service. 

3.  The evidence of record shows that 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.  He has provided no evidence to show that his discharge was unjust at the time of his offense.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The evidence of record also shows the applicant was in civil confinement during the processing of his separation as he had been sentenced to 5 years and 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 according to regulatory authority.  Separation was conducted in accordance with Army Regulation 635-206, for civil court conviction. 

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)                                         AR20090005661



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ABCMR Record of Proceedings (cont)                                         AR20090005661



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