BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20090019701 


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 reconsideration of an earlier request that his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states that he became ill with rheumatic fever at the age of 
16 and should have never been drafted into the armed forces and feels he should not be forced to carry the burden of a general discharge.  He contends that he did not talk to a lawyer prior to his discharge and the documents he received from Department of the Army do not show that an attorney was appointed to represent him at the hearing.  He adds that the medical examiner upon induction did not sign his Record of Induction.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter from Headquarters, Fort Knox, KY, dated 28 May 1978; a DD Form 47 (Record of Induction); and a copy of his previous ABCMR Record of Proceedings in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080016222, on 9 December 2008.

2.  The applicant provides new arguments which were not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant was inducted into the Army on 12 May 1969 and completed basic combat training.  Prior to completing advanced individual training, he departed absent without leave (AWOL) on 4 August 1969.

4.  A West Virginia Division of Correction Probation and Parole Officer's Field Report indicates that on 9 October 1969 the applicant was arrested at his mother's residence for the AWOL offense.  He was placed in confinement and while being interviewed by a confinement facility official, it appears he confessed to breaking and entering a service station with another individual on 1 April 1969 and taking money, cigarettes, and 20 radiators.  This report further shows that on 28 October 1969 he was indicted for grand larceny.  He pleaded guilty to the offense on 25 November 1969 and, on 18 December 1969 he was sentenced to 1 to 10 years in confinement.

5.  The applicant was notified by correspondence he was being considered for elimination from the Army under the provisions of Army Regulation 635-206, by reason of conviction by civil court, and that he may be issued an Undesirable Discharge Certificate.  He was advised of his rights to request appointment of military counsel to represent him in his absence before a board of officers, to submit statements in his own behalf, or to waive the foregoing rights in writing. He acknowledged notification of the proposed separation action and requested appointment of military counsel to represent him before a board of officers.  He also submitted a statement in which he acknowledged that a counsel had been appointed to represent him.  He also stated that it was his desire to continue serving in the military.

6.  On 15 May 1970, an administrative separation board convened and recommended the applicant be separated from the service and furnished a General Discharge Certificate.  The Board of Officers Proceedings show he was represented by captain E, Judge Advocate General's Corps.

7.  On 22 May 1977, the appropriate authority approved the recommendations of the board and directed he be separated and given a General Discharge Certificate.  Accordingly, he was discharged on 28 May 1970 with a general, under honorable conditions discharge under the provisions of Army Regulation 635-206 due to conviction by civil authorities.  He completed 2 months and 
20 days of active duty service and accrued 299 of lost time.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct when they were convicted by civilian court for an offense for which the penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Personnel Separations) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he should have never been inducted due to a medical condition has been carefully reviewed.

2.  There is no evidence in his records, and he provided none, to substantiate his claim that he suffered from a medical condition that should have precluded his induction into the armed forces.  He completed basic combat training.  He also provided a statement while incarcerated in which he stated his desire to continue serving in the Army.  Therefore, his claim is not supported by the evidence available.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore 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 to amend the decision of the ABCMR set forth in Docket Number AR20080016222, dated 9 December 2008.




      _______ _  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)                                         AR20090019701



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ABCMR Record of Proceedings (cont)                                         AR20090019701



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