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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR201ARMY | BCMR | CY2009 | 20090014003
On 25 July 1961, the separation authority approved the findings and directed that the applicant be discharged with a general, under honorable conditions discharge. However, on 3 August 1961, a request for discharge under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) was initiated based on concealment of prior service. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted...
ARMY | BCMR | CY2011 | 20110012823
On 30 March 1961, he was convicted by civil authorities and sentenced to serve 6 months under the custody of the North Carolina State Prison. On 24 May 1961, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations Discharge Misconduct) due to his conviction by civil authorities. There is no evidence in the available records to show the applicant applied to the Army...
ARMY | BCMR | CY2014 | 20140003552
On 23 February 1961, the applicant's immediate commander forwarded him a letter notifying him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) by reason of conviction by a civil court, with an Undesirable Discharge Certificate. The applicant was discharged under the provisions of Army Regulation 635-206, by...
ARMY | BCMR | CY2015 | 20150004262
Application for correction of military records (with supporting documents provided, if any). 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. The evidence of record shows he was sentenced to not less than three years nor more than five years of civil confinement in the North Carolina...
ARMY | BCMR | CY2009 | 20090010096
Application for correction of military records (with supporting documents provided, if any). Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. The applicant's service record shows he had received one Article 15 and was confined by civil authorities.
ARMY | BCMR | CY2010 | 20100009904
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). On 19 January 1982, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his undesirable discharge. Records show he was 20 years of age at the time he was convicted by a civil court for his offense.
ARMY | BCMR | CY2010 | 20100012623
The applicant requests his undesirable discharge be upgraded to a general discharge. On 26 February 1971, he was arrested by the Union Lake, MI, police for the civil offenses of "minor in possession" and "breaking and entering" and on 5 April 1971 subsequent to a guilty plea, he was sentenced to probation for 1 year from 5 April 1971 with the conditions that he not leave the State without court permission, report monthly to his probation officer, not engage in antisocial misconduct, and not...
ARMY | BCMR | CY2010 | 20100019762
IN THE CASE OF: BOARD DATE: 22 February 2011 DOCKET NUMBER: AR20100019762 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On an unknown date, the applicant's chain of command recommended the applicant be discharged by reason of unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), then in effect. On 10 March 1976, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-206...
ARMY | BCMR | CY2003 | 2003089219C070403
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on...
ARMY | BCMR | CY2008 | 20080016509
On 5 March 1962, the applicants immediate commander recommended the applicant be administratively separated from military service under the provisions of paragraph 20a of Army Regulation 635-206 (Personnel Separations Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) for misconduct. It states, in pertinent part, that item 24(1) (Statement of Service Net Service this Period) shows the total service completed between the dates shown in item 19c (Date...