IN THE CASE OF:	

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090010096 


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 needed help from a psychiatrist when he was in the Army.  

3.  The applicant provides no additional documents 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 initially enlisted in the Regular Army on 13 May 1960 and was released from military control on 2 August 1960 by reason of a void enlistment. 
3.  The applicant enlisted in the Regular Army on 28 March 1961 for a period of three years.  He was advanced to private, E-2 in July 1961. 

4.  His DA Form 24 (Service Record) shows he was absent without leave (AWOL) from 7 August 1961 to 10 August 1961 and 1 September 1961 to 5 September 1961.  There is no record of nonjudicial punishment for these periods of AWOL.  

5.  His DA Form 24 shows he was confined from 11 August 1961 to 16 August 1961.

6.  On 7 December 1961, the applicant was found guilty of two counts of burglary in the 121st District Court, Brownfield, TX.  He was sentenced to four years confinement in the state penitentiary.   

7.  On an unknown date, the unit commander notified the applicant of his recommendation for his discharge under the provisions of Army Regulation
635-206 by reason of misconduct - conviction by a civil court.  He was advised of his rights.  The applicant’s election of rights is not available.  

8.  His service personnel records contain a document with a heading, “Personnel Data,” dated 4 January 1962, which shows he received one company Article 15 on 17 August 1961.  This Article 15 is not available in his personnel record.  

9.  On 9 January 1962, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-206, section III by reason of civil confinement with issuance of an Undesirable Discharge Certificate.

10.  The applicant was discharged from active duty on 12 January 1962.  He completed 4 months and 23 days of creditable active service with 144 days of lost time due to AWOL and civil confinement.  

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.  

12.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 contends that he needed help from a psychiatrist when he was in the Army.  However, there is no evidence of record to support his claim. 

2.  The applicant was found guilty by a civil court in December 1961 for two counts of burglary.  He was sentenced to four years confinement.

3.  The applicant's service record shows he had received one Article 15 and was confined by civil authorities.  As a result, the applicant's 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 under honorable discharge or a fully honorable discharge.

4.  It appears the appropriate approving authority determined that the applicant's overall military service warranted an undesirable discharge.  

5.  There is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  



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)                                         AR20090010096





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ABCMR Record of Proceedings (cont)                                         AR20090010096



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