BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009904 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was young at the time.  He served his country with dignity, respect, and honor and feels an upgrade is warranted. 

3.  The applicant provides a copy of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending
11 September 1960 and 11 January 1962.

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 was born on 25 September 1941.  He served for less than a year in the Tennessee Army National Guard prior to enlisting in the Regular Army on 17 January 1961.  He completed his initial entry training, he was awarded military occupational specialty (MOS) 112.00 (heavy weapons infantryman), and was advanced to the rank/grade of private first class (PFC)/E-3.

3.  His DA Form 24 (Service Record) shows he was absent without leave (AWOL) on three occasions for a total of 40 days.

4.  On 21 December 1961, the applicant's commander recommended his separation from the Army under the provisions of Army Regulation 635-206 by reason of conviction by a civil court.  The request stated he was tried and convicted by the Superior Court of Crawford County, Meadville, PA on
28 September 1961 for a charge of larceny of an automobile.  He was sentenced to 1 1/2 years to 5 years confinement under the supervision of the Director of Western Correctional Diagnostic and Classification Center. 

5.  On 23 December 1961, the separation authority approved his discharge due to conviction by civil court under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion).  The separation authority also directed the issuance of a DD Form 258A (Undesirable Discharge Certificate) and the applicant's reduction to the lowest enlisted grade.

6.  On 11 January 1962, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-206.  His DD Form 214 shows he completed 6 months and 1 day of active service this period with 177 days of time lost under Title 10, U.S. Code, section 972.  It also shows he completed 1 year and 1 month of total active service.

7.  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).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement n excess of   1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.
8.  On 19 January 1982, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his undesirable discharge.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the policies and procedures 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.  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 was convicted in civil court of larceny of an automobile.  His records also show that he had 40 days of lost time due to AWOL.

2.  Based on the seriousness of his offense, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

3.  Records show he was 20 years of age at the time he was convicted by a civil court for his offense.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In view of the foregoing, 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)                                         AR20100009904



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20100