BOARD DATE: 30 March 2010
DOCKET NUMBER: AR20090014976
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 he wants to change his discharge from under other than honorable conditions.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 28 February 1961 for a period of 3 years. He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 711.10 (clerk typist) and later MOS 179.10 (air defense fire control missile crewman). On 28 March 1963, he was honorably discharged for immediate reenlistment. He reenlisted on 29 March 1963 for a period of 6 years.
3. On 29 August 1963, the applicant was convicted by a special court-martial in accordance with his pleas of two specifications of being absent without leave (AWOL) from 4 May 1963 to 15 May 1963 and from 25 May 1963 to 6 June 1963. He was sentenced to be reduced to E-1, to be confined at hard labor for 6 months, and to forfeit $43.00 pay per month for 6 months. On 30 August 1963, the convening authority approved the sentence but suspended the sentence to confinement for 6 months. On 18 December 1963, the unexecuted portion of the sentence was suspended for 3 months.
4. The applicant was AWOL on 15 January 1964. He was arrested on 17 January 1964 by civil authorities in Kansas. On 27 February 1964, he was tried and convicted of violation of the Dyer Act (transporting in interstate commerce a stolen motor vehicle) in Wichita, Kansas. He was sentenced to confinement for 4 years; however, his sentence was suspended and he was placed on probation for 4 years. He returned to military control on 6 March 1964.
5. On 13 March 1964, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for conviction by civil court. He waived consideration of his case by a board of officers and he elected not to submit a statement in his own behalf. He also acknowledged that he might expect to encounter substantial prejudice in civilian life in the event an undesirable discharge were issued and that he understood that as the result of the issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws.
6. On 27 April 1964, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.
7. Accordingly, the applicant was discharged on 6 May 1964 with an undesirable discharge under the provisions of Army Regulation 635-206 for conviction by civil court. He had served a total of 2 years, 9 months, and 5 days of creditable active service with 156 days of lost time.
8. On 6 September 1968, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.
9. 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.
10. 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 record of service included one special court-martial conviction and 156 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.
2. 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.
3. 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.
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