IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100027967 


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 that his discharge other than honorable conditions be upgraded to a general discharge.

2.  The applicant states his discharge is inequitable because of one incident during his 4 years of service.  He states he loaned his car to a civilian friend and when it was returned it had stolen goods in the trunk without his knowledge.  The military police found the items when he was stopped.  He did not know the items were in the car.  He also states that at the end of the trial one of the civilians admitted he had no role in the theft, but he was found guilty.  He had no problems before this incident and he served 1 year in Vietnam.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 10 January 1968 for a period of 3 years.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  The highest grade the applicant attained during his enlistment was sergeant/pay grade E-5.

3.  On 21 May 1970, the applicant was honorably discharged for immediate reenlistment on 22 May 1970 for a period 4 years.

4.  On 11 August 1970, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for rendering a false statement.

5.  On 2 June 1971, the applicant was convicted by the Federal District Court of South Carolina for theft from a military reservation and was sentenced to 2 years in federal prison.

6.  The applicant's separation packet is not available.  The applicant's DD Form 214 shows he was discharged on 23 December 1971 under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for misconduct with a characterization of under conditions other than honorable.  The DD Form 214 shows the applicant held the rank of private/pay grade E-1 on the date of discharge and that he completed a total of 3 years, 11 months, and 14 days of active military service.  The DD Form 214 also shows the applicant had lost time from 23 February to 26 April 1971 and from 2 June to 20 December 1971.

7.  On 14 March 1980, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

8.  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 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 UCMJ 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.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy 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 contends that his discharge under conditions other than honorable should be upgraded to a general discharge.

2.  The applicant was discharged under the provisions of Army Regulation 
635-206 by reason of misconduct due to a civil conviction.  He was convicted by a civilian court for larceny and he was sentenced to 2 years of confinement.  As required by the applicable regulation at the time, his chain of command initiated separation action against him.

3.  Although the entire separation packet surrounding the applicant's discharge processing is not available, the evidence does include a properly-constituted DD Form 214 which identifies that the applicant was discharged in accordance with Army Regulation 635-206 for misconduct and there is a presumption of government regularity attached to this document.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  His actions at the time clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by his serious civilian charges.  In addition, he had previously been given an Article 15.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to a 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 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)                                         AR20100027967



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ABCMR Record of Proceedings (cont)                                         AR20100027967



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