IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100009347 


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 an upgrade of his undesirable discharge to honorable or general.

2.  The applicant states, in effect, that he did cause problems, but he has a better understanding of life now.  He was young, stupid, and full of himself.  He would not listen because he thought he knew it all.  However, his life has changed and he is a better person now.

3.  The applicant provides no documentation to support 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.  The applicant enlisted in the Regular Army on 24 January 1967 at age 20.  He completed basic training at Fort Bragg, North Carolina and reported for advanced individual training at Fort Gordon, Georgia on 15 April 1967. 

3.  The facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, his service record contains the following evidence:

4.  A military police report and a letter from a civilian lawyer summarized the applicant's misadventures as follows:

* on 4 May 1967, the applicant and his father rented a furnished apartment and after about 6 days they moved out and took household goods and tools belonging to the owner with them
* about 12 days later they stole some power tools from a shed
* they were apprehended by civil authorities and held in the Burke County Jail in Georgia
* they escaped from the jail when a trustee let everyone out
* the applicant and his father joined the trustee in stealing a deputy's personal automobile
* they were apprehended by the Federal Bureau of Investigation
* the applicant pled guilty to two charges of larceny and he was sentenced to 5 years in prison on each charge

5.  On an unknown date the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations).

6.  On 10 April 1968, a board of officers convened to determine if the applicant should be separated under the provisions of Army Regulation 635-206, due to a civil conviction.  The applicant was represented by counsel in his absence because he was in civilian confinement.  The board of officers recommended separation with an undesirable discharge and the separation authority approved the recommendation.

7.  A properly-constituted DD Form 214 (Armed Forces of the United Sates Report of Transfer or Discharge) shows the applicant was discharged on 2 May 1968, under the provisions of Army Regulation 635-206, due to misconduct and he was issued an Undesirable Discharge Certificate.  This form also shows he completed 3 months and 7days of creditable active service and he had 368 days of lost time.

8.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.  

9.  Army Regulation 635-206 (Personnel Separations), then in effect, provided that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such a separation was warranted an undesirable discharge was considered appropriate.

10.  Army Regulation 635-200 (Personnel Separations), currently in effect, sets forth the basic authority for 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.

11.  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.  The applicant contention that his undesirable discharge should be upgraded because he was young and immature was taken into consideration; however, the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

2.  All of the facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a properly-constituted
DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-206, due to misconduct.


3.  The applicant was convicted by a civil court of two charges of larceny and sentenced to serve 5 years in prison on each charge.  A board of officers convened and the applicant's counsel appeared before the board to represent him in his absence.  The board recommended that the applicant be issued an undesirable discharge.  The recommendation was approved and the applicant was discharged accordingly.  

4.  The applicant's discharge action was accomplished in accordance with the applicable regulation in effect at the time and there is no evidence to the contrary.  Based on his record of indiscipline the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

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)                                         AR20100009347



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009347



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1