IN THE CASE OF:	 

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090015927 


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 under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions.  

2.  The applicant states that his discharge should be upgraded because he was shown no respect from civilians or his peers when he came back from Vietnam.  He also states that he could not understand the treatment and ridicule he received from civilians.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  On 16 July 1964, the applicant enlisted in the Regular Army for a period of 
3 years.  He completed the required training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The applicant completed 1 year of foreign service in Kontum, Vietnam from May 1965 to 
May 1966.  The highest grade held was pay grade E-3.  

3. On 11 October 1964, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from his unit on 12 October 1964.  The imposed punishment was a forfeiture of $18.00 pay and 7 days of restriction to the company area. 

4.  On 2 November 1964, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  The imposed punishment was a forfeiture of $18.00 pay, 14 days of restriction, and 14 days of extra duty. 

5.  On 21 January 1965, a special court-martial convicted the applicant of stealing currency of a value of $40.00, on 1 January 1965, from the wall locker of another Soldier.  He was sentenced to 6 months of confinement at hard labor in the Post Stockade at Fort Benning, Georgia, a forfeiture of $55.00 pay for 
6 months, and reduction to the rank of private E-1.  The sentence was modified and the forfeiture was reduced to $28.00 for 6 months (suspended for 4 months). 

6.  On 11 April 1966, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His imposed punishment was a forfeiture of $12.00 pay and 3 days of restriction. 

7.  On 3 October 1966, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL.  The imposed punishment was a reduction to pay grade E-2, 14 days of restriction, and 14 days of extra duty.

8.  On 22 October 1966, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for breaking restriction.  The imposed punishment was 14 days of restriction and 14 days of extra duty.

9.  On 28 November 1966, a summary court-martial convicted the applicant of being AWOL from his organization from on or about 1 November to 20 November 1966.  He was sentenced to a forfeiture of $112.00 pay, reduction to the rank of E-1, and to perform hard labor without confinement for 45 days.  The sentence was approved and ordered executed.  However, the sentence was modified and the forfeiture was reduced to $59.00 pay.

10.  On 31 March 1967, the Superior Court of the State of California convicted the applicant of automobile theft.  He was committed to the California Youth Authority.

11. On 31 March 1967, the applicant was notified by his commander that he was being considered for discharge under the provisions of Army Regulation 635-206, due to conviction by a civil court.  The applicant requested consideration of his case by a board of officers to determine if he should be discharged.  The commander informed the applicant that since he was unable to appear in person before a board of officers that he could appoint a counsel to represent him in his absence.   

12.  On 26 July 1967, the board of officers met, and the applicant was represented by counsel.  Counsel presented a letter to the board from the applicant stating the best solution for him and the Army was for him to be discharged.  The board considered the evidence and found the applicant undesirable for further retention in the military because of his conviction by civil court.  The board recommended that the applicant be discharged due to misconduct (conviction by civil court) and that he be issued an Undesirable Discharge Certificate.

13.  On 1 September 1967, the Commanding General approved the recommendation and directed that the applicant be reduced to the lowest enlisted grade and that he be discharged under the provisions of Army Regulation 635-206, by reason of misconduct (civil conviction) with an Undesirable Discharge Certificate.

14.  On 15 September 1967, the applicant was discharged in pay grade E-1, with an undesirable discharge.  He had completed 2 years, 2 months, and 19 days of creditable active service and he had 341 days of lost time.              

15.  Army Regulation 635-206 (Conviction by Civil Court), then in effect, provided, in pertinent part, that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted, an undesirable discharge was considered appropriate.

16.  Army Regulation 635-200 sets forth the basic policies 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.

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's request was carefully considered and found to be insufficient in merit. 

2.  The evidence of record shows the applicant was tried and convicted by a civil court for automobile theft.  The conviction that led to his discharge was a serious act of misconduct which justified civil confinement.  Therefore, elimination processing was warranted.

3.  The applicant's misconduct diminished the quality of his overall service below that meriting an honorable or a general discharge.  In addition, his misconduct started before he arrived in Vietnam.  He was properly separated for misconduct and he has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  The evidence of record shows the applicant's discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.




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)                                         AR20090015927



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090015927


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1