BOARD DATE:	  21 July 2009

		DOCKET NUMBER:  AR20090006253 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that at the time of his discharge he was immature and associated with the wrong type of people.  He states that his civilian behavior since his discharge has been excellent and he would like an upgrade for employment reasons.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) in support of this 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 was born on 13 July 1951.  His military records show he enlisted in the Regular Army on 30 November 1970.  On 30 July 1971, he immediately reenlisted for 3 years.  The available records do not show any significant acts of achievement or valor during his military service.  He was awarded the military occupational specialty of combat engineer and was promoted to pay grade E-3.

3.  On 22 September 1972, the applicant was convicted in Prince Edward County Circuit Court on a plea of guilty to five misdemeanor warrants for trespassing, three charges of utterance of a bad check, and failing to appear in County Court.  He was given a sentence of 180 days in jail, 80 days of which was suspended, and fines amounting to $100.00.  On 1 March 1973, the applicant was found guilty for violation of suspension and remained in jail to serve the suspended time.  

4.  On 19 June 1973, the applicant was tried on a plea of guilty to an indictment of grand larceny.  He was convicted and sentenced to 3 years in the Virginia State Penitentiary, 2 years of which was suspended for good behavior for a period of 5 years.  The unsuspended sentence was ordered to be served in the County Jail.  

5.  On 4 March 1974, the applicant was convicted in Cumberland County Circuit Court for felony larceny and sentenced to confinement in the penitentiary for 10 years to run concurrently with his previous sentence from Prince Edward County Court.

6.  On 6 September 1974, the applicant was informed by his commander that he was being considered for separation from the Army under the provisions of Army Regulation 635-206.

7.  On 14 September 1974, the applicant acknowledged he had been afforded the opportunity to consult with counsel, military counsel of his own choice if reasonably available or civilian counsel at his own expense.  He requested consideration of his case by a board of officers and his personal appearance before a board of officers.  He did not elect to submit a statement.

8.  He further acknowledged he understood that as a result of issuance of a discharge under conditions other than honorable he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.



9.  On 24 February 1975, the applicant's commander recommended he be considered for separation from the Army under the provisions of section VI, paragraph 33a, of Army Regulation 635-206.  He had been convicted in civil court of eight offenses.

10.  The applicant's intermediate commanders recommended approval of his discharge.

11.  On 28 April 1975, a board of officers met to consider the applicant's separation from the Army under the provisions of Army Regulation 635-206.  In the board proceedings, the board found that the applicant was undesirable for retention in the military service because of conviction by civil court.

12.  On 1 May 1975, the separation authority approved the applicant's discharge due to conviction by civil court under the provisions of Army Regulation 635-206.  It was directed that the applicant be given a DD Form 258A (Undesirable Discharge Certificate) and reduced in rank to the lowest enlisted grade in accordance with Army Regulation 600-200 prior to discharge.

13.  On 7 May 1975, the applicant was discharged with an undesirable discharge and a characterization of service of under conditions other than honorable under the provisions of Army Regulation 635-206 after completing 3 years and 2 days of active service with 521 days of lost time under Title 10, U.S. Code, section 972.

14.  Army Regulation 635-206, then in effect, provided that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year or more was to be considered for elimination.

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

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 (emphasis added), 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 was convicted in civil court of eight offenses including trespassing, utterance of a bad check on three occasions, failing to appear in county court, violation of suspension, larceny, and grand larceny.  His records show that he had 521 days of lost time.

2.  Based on the applicant's record of indiscipline, his 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 or an honorable discharge.

3.  The Board does not upgrade properly issued discharges for the sole purpose of enhancing an applicant's employment prospects or to establish eligibility for benefits.

4.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090006253



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ABCMR Record of Proceedings (cont)                                         AR20090006253



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