BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029668 


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 an upgrade of his undesirable discharge to a general discharge.

2.  He states he was convicted by a civil court for violation of the Dyer Act which was a misdemeanor.  He also states it has been a very long time since he received his discharge.

3.  He provides an Undesirable Discharge Certificate, an Honorable Discharge Certificate issued by the U.S. Air Force (USAF), and his discharge orders.

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.  Following periods of service in the Army National Guard and the USAF, the applicant enlisted in the Regular Army on 28 August 1962.

3.  Section 6 (Time Lost) of his DA Form 24 (Service Record) shows he was absent without leave (AWOL) from 12 January to 3 February 1963 and from 6 to 26 March 1963.

4.  On 27 February 1963, Headquarters, 83d Chemical Battalion (Service), Fort Bragg, NC, issued Special Court-Martial Order Number 2, which shows he was found guilty of being AWOL from 12 January to 4 February 1963.  He was sentenced to perform hard labor without confinement for 3 months and to forfeit $55.00 pay per month for 3 months.  Only so much of the sentence as provided for hard labor without confinement for 2 months and forfeiture of $35.00 pay per month for 2 months was approved and ordered to be executed.

5.  A DA Form 19-32 (Military Police Report) in his record shows he was apprehended on 16 March 1963 on charges of being AWOL and larceny.

6.  On 19 March 1963, he provided a statement to a U.S. Army Criminal Investigator.  In his statement he admitted stealing a 1956 2-door Chevrolet on 5 March 1963 and driving it to his hometown in Arkansas.

7.  On 27 March 1963, the U.S. District Court for the Eastern District of Arkansas Western Division found him guilty of transporting in interstate commerce a stolen motor vehicle from Fort Bragg, NC, to North Little Rock, AR.  Imposition of the sentence was suspended and he was placed on probation for 18 months to begin when he was discharged by military authorities, provided the discharge occurred before the expiration of the 18-month period.

8.  On 23 April 1963, his commander requested his separation under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), section III, by reason of conviction by a civil court and that he be issued an undesirable discharge.

9.  On or about 17 May 1963, the separation authority approved his discharge under the provisions of Army Regulation 635-206, section  III, and directed that he be issued an Undesirable Discharge Certificate.  A memorandum for record prepared at the time his discharge was approved shows he had been convicted of an offense punishable by 2 years of confinement under the Uniform Code of Military Justice (UCMJ).

10.  On 5 June 1963, he was discharged accordingly.  The DD Form 214 issued at that time shows he completed 8 months and 24 days of total active service with 44 days of lost time.

11.  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).  This regulation provided 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 UCMJ was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority 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 evidence of record does not support the applicant's request for an upgrade of his undesirable discharge to a general discharge.

2.  There is no evidence showing he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

3.  His record of service includes 44 days of lost time due to AWOL, conviction by a special court-martial, and conviction by a civil court.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  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)                                         AR20100029668



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ABCMR Record of Proceedings (cont)                                         AR20100029668



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