IN THE CASE OF:	  

		BOARD DATE:	       27 APRIL 2009

		DOCKET NUMBER:  AR20090003119 


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 1965 discharge under other than honorable conditions be upgraded to fully honorable or under honorable conditions.

2.  The applicant states he thought he was on an approved leave of absence when he received papers to the contrary.  He states he had no idea his discharge was less than honorable until he attempted to use his veterans medical benefits.

3.  In a statement provided by the applicant’s spouse she noted that in May 1965 while her spouse was stationed at Fort Lewis, Washington he was notified by his mother that his father had lost his leg in a farming accident.  She states that her husband returned home to Iowa on a 30 day leave and was working the farm when he was assured that his leave had been extended for 60 additional days.  She states that shortly thereafter her spouse received papers stating that he was AWOL (absent without leave), but he believed the papers were to inform him he had been kicked out of the Army.

4.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 14 February 1964.  His records indicate that his father resided in Walcott, Iowa at the time.  The applicant successfully completed training and was subsequently assigned to Fort Lewis, Washington.  By October 1964, he had been promoted to the rank of private first class/E-3.  

3.  In December 1964, the applicant was punished twice under Article 15 of the Uniform Code of Military Justice (UCMJ), once for failing to be prepared for an inspection and once for speeding in a government vehicle.

4.  On 2 February 1965, he was convicted by a special court-martial of wrongfully appropriating a government vehicle in November 1964.  His punishment included a reduction to pay grade E-1, a forfeiture, and confinement at hard labor for         6 months.  The confinement portion of his sentence was suspended by the convening authority.

5.  According to documents in the applicant’s file, on 9 May 1965 the applicant was apprehended by civilian authorities in Bridgeport, Nebraska (more than 700 miles from Walcott, Iowa) for burglary and assault.  He was subsequently confined by civilian authorities and convicted in a civilian court.  His sentence included 3 months confinement in the Morrill County Jail (Nebraska) and 3 years probation.

6.  In July 1965, while the applicant was in civil confinement, his unit commander initiated action to administratively separate him under the provisions of Army Regulation 635-206.  The commander noted that he had spent several hours of his personal time coaching the applicant and at one time had even allowed him to go home on leave and then approved his request for an extension.  However, the commander then indicated the applicant violated all trust given him, did not measure up to the bare minimum standards of a poor Soldier and was then currently confined by civilian authorities.  He recommended an undesirable discharge.



7.  On 20 July 1965, the appropriate separation authority approved the recommendation for discharge and directed the applicant be discharged from military service by reason of civil conviction and issued an undesirable discharge certificate.

8.  On 2 August 1965, the applicant was discharged.  His service was characterized as under other than honorable conditions.

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

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel who had committed an act or acts of misconduct (i.e., fraudulent entry, conviction by civil authorities, absence without leave and desertion).  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 is the basic regulation that governs 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  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.  Contrary to the statement provided by the applicant’s wife, he was not on leave assisting his father with the farm in Iowa at the time he received his separation documents.  Rather, the applicant was in jail following his conviction by civil authorities for burglary and assault which took place in Nebraska, more than 700 miles from his father’s farm.


2.  In addition to the civil conviction, the applicant’s records indicate that he was punished twice under Article 15 and convicted by a special court-martial.  The characterization of his service was appropriate considering his record of misconduct.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  

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

6.  In view of the foregoing, there is no basis for granting the applicant's request

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.




      _______ _   ___XXX____   ___
               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)                                         AR20090003119





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ABCMR Record of Proceedings (cont)                                         AR20090003119



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