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ARMY | BCMR | CY2010 | 20100008742
Original file (20100008742.txt) Auto-classification: Denied

		
		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100008742 


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, in effect, upgrade of his undesirable discharge.

2.  The applicant states he was shot by his girlfriend.  His lawyer entered a plea and told him to take it.

3.  The applicant does not provide any additional documents.

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’s military records show that he enlisted in the Regular Army on 28 March 1957 for a period of 3 years. He was awarded military occupational specialty 111.07 (light weapons infantryman).  He served in Korea and was advanced to the rank/grade of private first class (PFC)/E-3.
3.  On 17 June 1959, the applicant was convicted by a summary court-martial of being in an off limits area and being in a South Korean village without an Armed Forces Liberty Pass.

4.  The applicant was honorably released from active duty on 10 March 1960.

5.  The applicant again enlisted in the Regular Army on 5 April 1960.  He was advanced to the rank/grade of specialist four (SP4)/E-4.  On 3 October 1960, the applicant was confined by civil authorities after being convicted of breaking and entering.  He was returned to military control on 26 October 1960.

6.  On 18 May 1961, the applicant was charged with breaking and entering and assault with intent to kill and he was placed in pre-trial confinement pending trial.

7.  The applicant entered a plea of guilty to the charge of "Assault and Battery of a High and Aggravated Nature and Housebreaking."  The applicant was sentenced to serve one year in the Public Works of Richland County, SC.

8.  The applicant submitted a statement stating that he did not appeal his trial and did not intend to appeal the trial.

9.  A board of officers was waived.  As a result, an undesirable discharge was directed.

10.  Accordingly, on 29 August 1961, the applicant discharged under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) on
29 August 1961 by reason of civil conviction.  He was issued an Undesirable Discharge Certificate.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.  When such separation was warranted an undesirable discharge was considered appropriate.

12.  Army Regulation 635-200 sets forth the basic authority 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to contend that he was innocent of the civil charges that formed the basis for his discharge and that he had ineffectual legal counsel.

2.  The applicant's contentions were matters that could have formed the basis of an appeal of his civilian conviction or sentence.  However, the applicant chose not to appeal his conviction or his sentence.

3.  Since the applicant did not appeal his conviction or sentence and he was sentenced to a year confinement, he was properly discharged under the provisions of Army Regulation 635-206.  The characterization of his discharge as undesirable appears to be appropriate considering the quality of his 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)                                         AR20100008742



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR201

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