IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100016767 


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, correction of the character of service on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 June 1957 to show "undesirable" instead of  “under other than honorable conditions.”

2.  He states the following:

* His first discharge was honorable
* His second discharge was undesirable
* The paperwork he received in May (sic) shows he received a dishonorable discharge, which is incorrect 

3.  He 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.  The applicant’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  He initially enlisted in the Regular Army on 8 October 1951 and was honorably discharged on 6 October 1954 for the purpose of reenlistment.

4.  He reenlisted on 7 October 1954 for a period of six years.  

5.  The applicant's discharge packet is not available for review.  However, his
DD Form 214 for the period ending 3 June 1957 shows he was discharged under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge -Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), section IV, by reason of being convicted or adjudged a juvenile offender by a civil court during current term of active military service with issuance of a DD Form 258A (Undesirable Discharge Certificate).  His service was characterized as “under other than honorable conditions."  There is no indication he received a "dishonorable discharge" or that he was issued a "Dishonorable Discharge Certificate."  His DD Form 214 shows he completed 2 years, 4 months, and
27 days of net service this period with 92 days of lost time.  He had 5 years,
4 months, and 26 days of total active service.

6.  His civil court proceedings are not available for review.

7.  His service record does not indicate he applied to the Army Discharge Review Board for a change in his discharge within its 15-year statute of limitations.  

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant served honorably during his first enlistment.  However, during the period under review, he had 92 days of time lost and was subsequently discharged under the provisions of Army Regulation
635-206, section IV, by reason of being convicted or adjudged a juvenile offender by a civil court during current term of active military service.  

2.  Although his discharge packet is not available for review, it is presumed the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record of service and that the separation action was processed in accordance with the governing regulation.  Accordingly, his service was appropriately characterized as under other than honorable conditions with issuance of an Undesirable Discharge Certificate.

3.  The available evidence of record does not show the actions taken in this case were in error or unjust.  Additionally, there is no indication he was issued a dishonorable discharge or a "Dishonorable Discharge Certificate."  Therefore, there is no basis for granting his requested relief.

4. 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)                                         AR20100016767



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ABCMR Record of Proceedings (cont)                                         AR20100016767



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