IN THE CASE OF:
BOARD DATE: 7 October 2010
DOCKET NUMBER: AR20100009620
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 honorable.
2. The applicant states:
* He was home on leave, got drunk, and sold a car
* He went back to post and went to jail for the crime
* He turned himself in
* He has been a model citizen for 48 years
* He is active in the Ocala Shrine Club
* He is married and has three great children
* He works with government and law enforcement agents
3. The applicant provides:
* Resume
* Certificates of Training, Achievement, Appreciation, and Recognition
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 applicant enlisted in the Regular Army on 28 December 1960 for a period of 3 years. He successfully completed training and was awarded military occupational specialty 112.07 (heavy weapons infantryman).
3. On 16 May 1961, the applicant was convicted by a special court-martial of larceny. He was sentenced to be reduced to E-1, to be confined at hard labor for 6 months, and to forfeit $50.00 pay for 6 months. On 22 May 1961, the convening authority approved the sentence. On 28 June 1961, the unexecuted portion of the sentence to confinement was suspended until
16 November 1961.
4. On 20 April 1962, the applicant was arrested by civil authorities in Fayetteville, North Carolina for two counts of automobile theft. On 24 May 1962, he was tried and convicted of transporting a stolen motor vehicle in interstate commerce. He was confined at the Federal Reformatory in Petersburg, Virginia.
5. The facts and circumstances surrounding the applicants discharge are not available. However, his discharge orders and DD Form 214 (Report of Transfer or Discharge) show he was discharged on 15 August 1962 with an undesirable discharge under the provisions of Army Regulation 635-206, for conviction by civil court. He had served 1 year, 2 months, and 12 days of creditable active service with 155 days of lost time.
6. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
7. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. The regulation provided for the separation of personnel for conviction by a civil court. An undesirable discharge was normally considered appropriate.
8. Army Regulation 635-200 sets forth the basic policy 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.
9. 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. Good post-service conduct alone is normally not a basis for upgrading a discharge.
2. In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of 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) AR20100009620
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ABCMR Record of Proceedings (cont) AR20100009620
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