IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100017976 


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, that his undesirable discharge (UD) be upgraded. 

2.  He states, in effect, he enlisted in the Army the same day he was drafted in order to go to school.  Due to no fault of his own, he received a civil conviction for having stolen post tags on his vehicle.  He contends his girlfriend, at the time, had stolen them and placed them on his car and he received the punishment.

3.  He provided a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States). 

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.  His 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 his records were partially 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.  A copy of his DD Form 4 (Enlistment Record – United States) shows he enlisted in United States Army on 14 December 1953 for a period of 3 years.  After completion of basic combat and advanced individual training (AIT), he was awarded military occupational specialty 941.10 (Cook). 

4.  His DA Form 24 (Service Record) shows in section 4 (Chronological Record of Military Service) he was permanently assigned to Fort Leonard Wood, MO after the completion of AIT.  

5.  His record contains a copy of a letter, dated 24 June 1955, that shows he was released from civil confinement and turned over to military authorities effective that same date.  He and another Soldier were convicted by a civilian court of breaking into the launderette and Post Exchange #15 on Fort Leonard Wood, MO.  The dates of these offenses are not in the available record.

6.  On 28 June 1955, his immediate commander recommended discharge under the provisions of Section IV, Army Regulation 615-366 (Enlisted Personnel - Discharge) conviction by civil court.  

7.  While pending separation under the provisions of Army Regulation 615-366, at Fort Leonard Wood, on 24 August 1955, he was convicted by a special court-martial for violation of two specifications under Article 92, Uniform Code of Military Justice, by transferring registration tags from one vehicle to another and for wrongly appropriating an automobile tag on 31 July 1955.  He was also convicted for violation of Article 121 by departing Fort Leonard Wood without a liberty pass on 8 August 1955.  He was sentenced to 6 months in confinement and a forfeiture of $55.00 pay for 6 months.  The sentence was approved and ordered executed except for the portion pertaining to confinement, which was suspended for 6 months. 

8.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available record.  However, his DD Form 214 shows that on 23 September 1955 he was discharged under the provisions of Army Regulation 615-366, for conviction by civil court.  He was furnished an Undesirable Discharge Certificate.  He had a total of 1 year, 6 months, and 9 days of creditable service and he had 91 days of time lost. 
9.  A review of the available records fails to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  Army Regulation 615-366, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, [absence without leave (AWOL)], desertion, and conviction by civil court).  Section IV of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  A UD was normally considered appropriate.  

11.  Army Regulation 635-200 (Active Duty Enlisted Separations), 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.

12.  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.  His military personnel records show he had a civil conviction and he was also convicted by a special court-martial for violation of Articles 92 and 121 of the UCMJ.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  He has not provided any evidence to show his discharge was unjust.  By his own admission, he stated he was punished for having stolen post tags on his car.  He contends unbeknownst to him, his girlfriend placed them on the car.  Despite his contention of his innocence pertaining to this act, it does not mitigate the reason for his civil conviction, which was breaking into two establishments on Fort Leonard Wood.  

4.  In view of the circumstances in this case, he is not entitled to an upgrade of his UD.  He has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20100017976



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ABCMR Record of Proceedings (cont)                                         AR20100017976



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