BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008716 


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, upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states that he was only 17 years old at the time he enlisted into the Army.  He offers that he served honorably during his first enlistment and completed a full tour in Korea.  The applicant maintains that he did not develop problems in the military until November 1964 when he went absent without leave (AWOL) for 30 days while assigned in Seattle, WA.  He adds that upon his return, he was sent to Fort Polk, LA to await his punishment.  He states that he fell in with the wrong crowd and made another stupid mistake; he went AWOL again.  The applicant adds that while he was AWOL he stole a car and wrote some "hot" checks.  He was later arrested and sentenced to prison for two years for car theft.  Upon being released from prison in 1967, he appeared before a judge in Jonesboro, AR where he pled guilty to a bad check charge.  The applicant states that he received a 10-year suspended sentence with the stipulation that he make restitution payments, which he did.  He offers that he served his prison sentence, made restitution payments, never got into trouble again, and has worked for 40 plus years.  The applicant concludes that he has diabetes and if his discharge was upgraded, he could apply for service-connected disability so that he may receive some much needed help. 

3.  The applicant provides a self-authored letter, dated 20 April 2009, and copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or 

Discharge) for the period ending 30 November 1962 and 28 June 1966 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 record shows he enlisted in the Regular Army (RA) and entered active duty on 18 November 1960 for a 3-year term of enlistment.  He was 17 years old at the time of enlistment.  On 30 November 1962, after serving 2 years and 13 days, he was honorably discharged for immediate reenlistment.  On 1 December 1962, he reenlisted for another 3-year term.

3.  The applicant's record shows he served in Korea from 26 April 1962 to 
21 May 1963.

4.  On 5 March 1963, nonjudicial punishment was imposed against the applicant for being AWOL from 1 March 1963 to 4 March 1963.  His punishment consisted of reduction from the rank/grade of specialist four (SP4)/E4 to private first class (PFC)/E3.

5.  On 29 October 1964, nonjudicial punishment was imposed against the applicant for wrongly appropriating a military vehicle, the property of the U.S. Air Force.  His punishment consisted of reduction from SP4 to PFC.

6.  On 23 September 1965, the applicant was convicted by the U.S. Distinct Court for interstate transportation of a stolen motor vehicle.  He was sentenced to imprisonment for two years.

7.  On 18 May 1966, the applicant's commander recommended that he be discharged under the provisions of paragraph 22a, Section III, Army Regulation 
635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), and be issued an Undesirable Discharge Certificate.  The commander stated that the applicant was found guilty 
of interstate transportation of a stolen vehicle and he was serving two years in 
confinement in the Bureau of Prisons Federal Reformatory in El Reno, OK.

8.  On 2 June 1966, the appropriate authority approved the applicant's discharge under the provisions of paragraph 22a, Section III, Army Regulation 235-206 with the issuance of an Undesirable Discharge Certificate.  

9  The applicant's DD Form 214 shows that he received an undesirable discharge characterized as under other than honorable conditions on 28 June 1966 under the provisions of Army Regulation 635-206.  He had completed a total of 3 years, 11 months, and 23 days of creditable service with 607 days of lost under Title 10, U.S. Code, section 972 due to AWOL and confinement.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 19 May 1969, the ADRB reviewed and denied the applicant's request for upgrade citing that he was properly discharged.  

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  The regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) governs the policies and procedures 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 argues, in effect, that his discharge should be upgraded because he was young at the time he entered the military.  Evidence of record shows that although the applicant was 17 years old at the time he entered the 
military, he was 19 years old at the time of his offenses.  The fact that he successfully completed over two years of active service prior to receiving any type of disciplinary action discounts his argument that his age led to his indiscipline.

2.  Further, his argument that completion of a tour in Korea and an honorable discharge during his first enlistment should entitle him to a discharge upgrade is not sufficient justification to warrant approval of his request.  Additionally, the applicant’s 40-plus years of working without any type of trouble was considered; however, good post-service conduct alone is not a basis for upgrading a properly issued discharge.  

3.  The applicant also contends that his discharge should be upgraded so that he can obtain, in effect, Department of Veterans Affairs (VA) benefits.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veterans benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.

4.  The applicant’s record shows he received two Article 15s and he had 607days of lost time.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to a discharge upgrade.

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)                                         AR20090008716



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ABCMR Record of Proceedings (cont)                                         AR20090008716



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