IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100017001 


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.

2.  The applicant states:

* Conviction by a civil jurisdiction should not be an automatic discharge from the Army without a court-martial
* Upon completion of civil confinement he should have been returned to military jurisdiction
* He was never afforded counsel to allow him due process
* He regrets he did not complete his service obligation
* Immaturity and personal problems (went absent without leave (AWOL) to marry his pregnant fiancé) led to his legal difficulties with civil authorities  

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) 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 was born on 21 January 1944.  He was inducted into the Army of the United States on 15 May 1962.  He successfully completed his training and was awarded military occupational specialty 723.17 (communications center specialist).

3.  On 17 March 1964, the applicant was convicted by a special court-martial of being AWOL from 20 December 1963 to 26 February 1964.  He was sentenced to be reduced to E-1, to perform hard labor without confinement for 3 months, and to forfeit $55.00 pay per month for 3 months.  On 18 March 1964, the convening authority approved the sentence.

4.  The applicant went AWOL on 23 March 1964.

5.  On 16 October 1964, the applicant was convicted of transporting in interstate commerce a stolen vehicle.  He was sentenced to 18 months confinement.

6.  An undated FGGM Form 385 (Individual Statement Concerning Appeal) shows the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for conviction by a civil court.  This form states the applicant did not intend to appeal his conviction, that he was denied parole on 24 March 1965, and that his minimum expiration date was 16 December 1965.  

7.  On 21 April 1965, a recommendation for discharge under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct) was initiated based on the applicant's civil conviction on 16 October 1964.

8.  On 28 April 1965, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.

9.  Accordingly, the applicant was discharged on 25 June 1965 with an undesirable discharge under the provisions of Army Regulation 635-206 for his conviction by a civil court.  He served 1 year, 6 months, and 25 days of creditable active service with 561 days of lost time.

10.  On 17 June 1981, the Army Discharge Review Board denied the applicant's request for upgrade of his discharge to honorable.

11.  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.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets for 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.

13.  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.  Immaturity is not a sufficiently mitigating factor.  The applicant was 18 years of age when he was inducted and he completed his training.  In addition, he completed over 18 months of service prior to going AWOL in December 1963.

2.  The applicant's contention he went AWOL to marry his pregnant fiancé was noted.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to going AWOL.

3.  The applicant's remaining contentions were carefully considered.  However, his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He signed a statement that he did not intend to appeal his conviction.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.





4.  The applicant's record of service included one special court-martial and 561 days of lost time.  It appears he also committed a serious civil offense while in the Army.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or general 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)                                         AR20100017001





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ABCMR Record of Proceedings (cont)                                         AR20100017001



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