IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110003119 


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 upgrade of his undesirable discharge.

2.  The applicant states he was young and he had a wife and a newborn son at the time.  The thought of going overseas was very terrifying to him.  He wanted to stay home with his family and now sees that was the wrong decision.

3.  The applicant provides no additional evidence 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.  He enlisted in the California Army National Guard (CAARNG) on 26 January 1960 at the age of 17.  He completed a period of active duty from 17 April 

through 16 October 1960.  On 10 April 1961, he was discharged from the CAARNG and he was transferred to the U.S. Army Reserve (USAR).  On
4 March 1962, he was discharged from the USAR and he enlisted in the Regular Army on 5 March 1962 for a period of 3 years.

3.  His DA Form 24 (Service Record) shows a period of absence without leave (AWOL) from 9-13 January 1963.

4.  On 1 March 1963, he was apprehended by civil authorities in Antioch, CA for burglary and driving on a suspended license.  On 20 May 1963, he was sentenced to 2 years of formal probation on the charge of burglary and 30 days in jail for the driving on a suspended license offense.

5.  The equivalent crime and maximum punishment under the Table of Maximum Punishments of the Manual for Courts-Martial, United States, 1951 for violation of Article 129, burglary is a dishonorable discharge, reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and 10 years in confinement.

6.  On 28 May 1963, he was tried by a summary court-martial.  He pled guilty and he was found guilty of being AWOL from 9 February to 20 May 1963.

7.  The records of his processing for separation are not available for review.  On 28 June 1963, by message from The Adjutant General, Washington, D.C., the appropriate authority approved the applicant's recommendation for discharge under the provisions of Army Regulation 635-206 (Personnel Separations –Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court,
AWOL, Desertion)) by reason of misconduct/convicted by a civil court during current term of active military service.  The separation authority directed the applicant be furnished an Undesirable Discharge Certificate and reduced to the lowest enlisted grade.

8.  On 13 August 1963, he was discharged accordingly.  He completed 1 year,
6 months, and 21 days of total active service with 138 days of time lost.

9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of 

each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

11.  Army Regulation 635-206, section VI (Conviction by Civil Court), then in effect, states an individual will be considered for discharge when he has been initially convicted by civil authorities, or action has been taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) is death or confinement in excess of 1 year.

12.  Army Regulation 635-206 also provides that an individual discharged for conviction by a civil court normally will be furnished an undesirable discharge certificate; however, an honorable or general discharge certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

13.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was 17 years of age at the time of his enlistment in the CAARNG.  However, he was 19 years of age at the time of his enlistment in the Regular Army.  He was 20 years of age at the time of his first period of AWOL, arrest, and conviction by civil authorities for burglary and driving under a suspended license, and his conviction by a summary court-martial.  

2.  Many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant is not mitigating as a reason to change a properly-issued discharge.

3.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

4.  His separation processing documents are not available for review.

5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  He was convicted by a summary court-martial for AWOL, he had 138 days of total time lost, and he was convicted of burglary and driving with a suspended license in a civil court.  As such, his service is considered unsatisfactory.  Therefore, there is an insufficient basis to upgrade his discharge to an honorable or 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 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)                                         AR20110003119



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ABCMR Record of Proceedings (cont)                                         AR20110003119



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