IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090008477 


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 not allowed to attend his court-martial.

3.  The applicant provides no documentary evidence 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 26 February 1964 for a period of 3 years.  He served as a radio relay and carrier attendant and was honorably discharged on 16 September 1965 for immediate reenlistment.  He reenlisted on 17 September 1965 for a period of 6 years.  
3.  On 6 November 1965, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to E-2.

4.  On 26 January 1966, in accordance with his pleas, the applicant was convicted by a special court-martial of larceny (money order) and forgery (money order).  He was sentenced to be confined at hard labor for 6 months, to forfeit $60 pay per month for 6 months, and to be reduced to E-1.  On 18 January 1966, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 3 months, forfeiture of $60 pay per month for 3 months, and reduction to E-1.  On 22 March 1966, the unexecuted portion of the sentence to confinement was suspended until 25 April 1966.   

5.  On 2 June 1966, nonjudicial punishment was imposed against the applicant for failing to go to his place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 17 August 1966, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from his place of duty on 
10 August 1966.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

7.  The applicant went AWOL on 6 October 1966.  He was apprehended by civil authorities in Georgia on 8 October 1966 for burglary.  On 19 December 1966, he was convicted of burglary and sentenced to 3 years.     

8.  On 1 March 1967, a written notification of proposed discharge action was mailed to the applicant while he was in civil confinement.  He was notified that he was being processed for discharge under the provisions of Army Regulation  635-206, that he was being considered for elimination with an undesirable discharge, and he was afforded his rights.  The applicant requested appointment of military counsel to represent him and present his case before a Board of Officers.  The proceedings are not available.  However, a Report of Proceedings of Board of Officers, dated 9 May 1967, states the recommendations of the Board of Officers that the applicant be discharged under the provisions of Army Regulation 635-206 and issued an undesirable discharge are approved.

9.  Discharge orders and the applicant's DD Form 214 (Report of Transfer or Discharge) for the period ending 13 June 1967 shows that he was discharged on 13 June 1967 with an undesirable discharge under the provisions of Section III, Army Regulation 635-206, for conviction by civil court.  He had served a total of 
2 years, 5 months, and 17 days of creditable active service with 311 days of lost time due to AWOL, military confinement, and civil confinement.  
10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally considered appropriate.  

12.  Army Regulation 635-200 sets forth the basic policy for the 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 contention that he was not allowed to attend his court-martial (apparently he means the Board of Officers proceedings) was noted.  However, he was not afforded the opportunity to appear at the Board of Officers proceedings due to his civil confinement.  It appears he was represented by military counsel at the Board of Officers per his request.

2.  The applicant’s record of service included three nonjudicial punishments, 
one special court-martial conviction, and 311 days of lost time.  It appears he also committed a serious civil offense while in the Army.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.






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)                                         AR20090008477





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ABCMR Record of Proceedings (cont)                                         AR20090008477



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