IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000076 


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.

2.  The applicant states that when he was arrested by civil authorities he was treated with disrespect and never given the opportunity to contact his unit to get help.

3.  The applicant provides two character reference letters 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 11 May 1966, completed training and was awarded the military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant was absent without leave (AWOL) on 13 October 1966.  On 24 October 1966, he was apprehended by civil authorities in Paw Paw, Michigan, on a charge of automobile theft and returned to military control.  On 25 October 1966, he was returned to the Paw Paw, Michigan, civilian authorities on a charge of automobile theft.  He remained in civilian control until 10 January 1967 when charges were dismissed and he was returned to military control.  Due to the dismissal of civilian charges, he was officially charged with only 11 days of AWOL during this period.

4.  A 22 May 1967 special court-martial found the applicant guilty of stealing a pack of cigarettes from the post exchange and of three periods of AWOL:  13 through 16 January 1967, 24 March 1967 through 5 April 1967, and 23 April 1967.  His sentence included confinement for 30 days of which he served only 25 days from 12 May 1967 through 4 June 1967.

5.  On 24 July 1967, the applicant was reported AWOL and was apparently arrested by the Hartford, Maryland, civilian authorities on the same date.  He was returned to military control on 8 September 1967 and to his command on 18 September 1967.

6.  Records show the applicant was considered AWOL from 4 through 16 October 1967 when he was arrested and held by Salinas, California, civilian authorities as a suspect in two automobile thefts.  His status is not clear for the period 17 through 22 October 1967.  The record indicates he was transferred from the Salinas jail to the San Francisco jail.

7.  On 17 January 1968, he was tried and convicted on the automobile theft charges and sentenced to 8 months of confinement with consideration for time already served.

8.  The applicant's discharge packet is not available.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that, on 6 March 1968, he was discharged under other than honorable conditions in accordance with Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for misconduct for conviction by a civil court.  He had 1 year, 1 month, and 15 days of creditable service with 251 days of lost time.

9.  On 26 August 1982, the Army Discharge Review Board denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

10.  The applicant submits two letters of support from members of two veterans service organizations.  They state that over the past 20 years he has volunteered numerous hours and has shown remorse for what happened to him in the service.  His health is failing and his ability to travel is severely limited.

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities or action taken against the Soldier which was tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

12.  The Manual for Courts-Martial (rule 1003d3) provides that an individual convicted of two or more offenses for which the authorized confinement totals 6 or more months may be sentenced to a bad conduct discharge even though a bad conduct discharge is not otherwise authorized.

13.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was treated with disrespect and never given the opportunity to contact his unit to get help when he was arrested by civil authorities.

2.  The evidence of record shows the applicant's whereabouts were known to his command.  There is no documentation showing the applicant attempted contacting or was denied contacting his command by civil authorities.

3.  The applicant was implicated in and arrested in two different jurisdictions on grand theft automobile charges.  The second arrest resulted in a conviction for grand theft automobile that resulted in his discharge.

4.  Additionally, he was convicted by a special court-martial of theft from the post exchange and three of his six periods of AWOL.  The other three periods of AWOL ended as a result of civilian apprehension.

5.  The applicant has not provided and the record does not contain evidence that the applicant's post-service conduct is so outstanding as to mitigate the severity of the offenses that resulted in his discharge.

6.  In the absence of evidence to the contrary, it is presumed the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the reason for which he was discharged and is appropriate for the applicant's overall record of military service.

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)                                         AR20100000076



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ABCMR Record of Proceedings (cont)                                         AR20100000076



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