IN THE CASE OF:	  

		BOARD DATE:	    29 September 2011

		DOCKET NUMBER:  AR20110005890 


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 to a general discharge.

2.  The applicant states he was told at his enlistment that any civil court records would be expunged, that he was starting anew, and that his record in the military was clean.  He adds that he is sickly and in need of medical treatment.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three letters of reference.  He also provides a list of medical conditions he has had.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be upgraded to honorable due to his good conduct while in the service of his country.

2.  Counsel states the applicant loved military life and would have continued to serve the Army in good standing if he would have been able to serve his full tour of duty.  He further states the applicant is now elderly and in very poor health and badly in need of medical attention.  He states the applicant is only asking for consideration that he attempted to correct the mistakes of his youth by going into the military and starting over of which was done by "millions" of veterans who served their country in honorable fashion as would have the applicant if he would have gotten a chance.

3.  Counsel provides a letter on behalf of the applicant.

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 show he was inducted into the Army of the United States on 23 October 1959.  He did not complete training and was not awarded a military occupational specialty.  The highest grade he held was pay grade E-1.

3.  A 5th Endorsement to a memorandum, subject: Fraudulent Entry, dated 14 December 1959, indicated that a check of the applicant's records showed he had denied previous conviction by a civil court.

4.  First Armored Rifle Battalion, 41st Infantry Special Court-Martial Order Number 7, dated 29 March 1960, shows the applicant was convicted of being AWOL during the period 17 February to 16 March 1960.

5.  On 14 April 1960, the applicant acknowledged he had been notified by his commander that he was being recommended for discharge from the Army under the provisions of Army Regulation 635-206 by fraudulent entry.  He acknowledged that military counsel had been made available to him.  He further acknowledged that if an undesirable discharge was issued to him he may be deprived of many or all rights as a veteran under both Federal and state laws and that he may encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the type of discharge received there from may have a bearing.  He waived his rights and chose not to submit a statement in his own behalf.

6.  On 14 April 1960, the applicant's commander indicated on a 7th Endorsement to a memorandum, subject: Fraudulent Entry, dated 14 December 1959, that it was determined it was in the best interest of the service to eliminate the applicant under the provisions of Army Regulation 635-206.  Additional information provided on this endorsement included the nature of the applicant's civil offenses and disposition which included a conviction for burglary.  The commander also indicated on the endorsement that the applicant had been convicted by special court-martial of being AWOL, that he had been a poor Soldier, had balked at his duties, had displayed a surly attitude, and needed constant supervision.

7.  On 22 April 1960, he was approved for an undesirable discharge under the provisions of Section II of Army Regulation 635-206 (Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion). 

8.  On 2 May 1960, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-206.  His DD Form 214 shows he completed 5 months and 12 days of active service this period with 28 days of time lost under Title 10, U.S. Code, section 972.

9.  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).  It stated an individual who concealed his conviction b a civil court of a criminal offense for which he was sentenced to imprisonment, probation, or parole, or given a suspended sentence, for a term exceeding 1 year, normally would be discharged with an undesirable discharge.  However, if the individual's general qualifications were such that he was an asset to the service his unit commander could request to waive the right to discharge him for fraudulent entry.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations - 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.

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.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told his civil court records would be expunged, that he was starting anew, and that his record in the military was clean.  However, the fact remains that he failed to divulge that he was convicted in civil court of burglary prior to his enlistment in order to gain entry into the military.  He could have been retained if his general qualifications were such that his commander determined he was an asset to the service.  However, contrary to the contention that he had a good record in the military he was convicted by special court-martial for being AWOL for 28 days.  His commander also indicated he had been a poor Soldier, had balked at his duties, had displayed a surly attitude, and needed constant supervision.  

2.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Therefore, he is not entitled to an honorable or general discharge.

3.  His character and post-service conduct as attested to in the supporting statements are noteworthy.  However, his character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the misconduct that he committed during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.  

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110005890



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ABCMR Record of Proceedings (cont)                                         AR20110005890



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