IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008795 


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 his undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states the following:

* he was a young and stupid kid
* he has lived with this for 50 years
* he has been a law-abiding citizen
* he has been married for 46 years; he has 3 children and 5 grandchildren
* he has never been in any type of trouble

3.  The applicant provides no additional documents 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.  After having prior inactive and active service, the applicant enlisted in the Regular Army on 10 June 1961 at 17 years of age.

3.  On 5 December 1961, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 10 November 1961 to 2 December 1961.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of $55.00 pay for 1 month.  The confinement at hard labor was suspended for 30 days.

4.  His DA Form 24 (Service Record) shows he was in an AWOL status from 27 December 1961 to 9 January 1962.

5.  His DA Form 24 shows he was arrested by civil authorities in Hot Springs, Arkansas, while he was in an AWOL status.

6.  On 8 January 1962, the applicant was found guilty by the U.S. District Court for the Western District of Arkansas of transporting a stolen automobile from the State of Oklahoma to the State of Arkansas.  He was sentenced to 2 years of confinement.  The sentence was suspended and he was placed on probation for 2 years beginning with the termination of his military service.

7.  On an unknown date, the unit commander notified the applicant of his recommendation for his discharge under the provisions of Army Regulation 
635-206 (Personnel Separations – Discharge - Misconduct) by reason of misconduct – conviction by a civil court.  He was advised of his rights.  The applicant's election of his rights is not available.

8.  On 23 January 1962, the separation authority waived the requirement for a board of officers and approved the recommendation for discharge under the provisions of Army Regulation 635-206 with the issuance of an Undesirable Discharge Certificate.

9.  The applicant was discharged from active duty on 31 January 1962.  He completed 5 months and 24 days of creditable active service during the period under review.  He had 59 days of lost time due to AWOL and civil confinement.

10.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  Army Regulation 635-206, in effect at that 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).  This regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action taken against them which is tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  The applicant's contentions in regard to being young and his good post-service conduct are acknowledged.  However, these factors are not sufficiently mitigating to warrant relief in this case.

2.  The applicant was found guilty by a civil court in January 1962 for transporting a stolen automobile.  He was sentenced to 2 years confinement and was later placed on probation for 2 years.

3.  The applicant contends he has never been in any type of trouble.  However, his service record shows he was convicted by a summary court-martial for being AWOL for 23 days and he was also AWOL from 27 December 1961 to 9 January 1962 for 14 days.  As a result, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  It appears the chain of command determined the applicant's overall military service did not meet the standards for a general under honorable conditions or fully honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as undesirable.

5.  The evidence of record does not show the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20100008795



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ABCMR Record of Proceedings (cont)                                         AR20100008795



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