IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110012823 


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 undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states that after completing basic training at Fort Jackson, South Carolina, he remained at Fort Jackson assigned to the quartermaster.  He found it to be boring so he volunteered for airborne training and was transferred to Fort Bragg, North Carolina, where he discovered he bit off more than he could chew.  He states he kept falling out of runs and realized he should have stayed at Fort Jackson because he had become an embarrassment to himself, the Army, and his family.  He further states he apologizes for being a stupid kid and requests that the Board grant him an upgrade of his discharge as he is now 68 years of age.  He also states he served with the U.S. Merchant Marine from 1970 to 1981.

3.  The applicant provides a copy of his Merchant Mariner's Document and a handwritten letter explaining 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.  The applicant enlisted in the Regular Army on 5 April 1960 for a period of 3 years.  He completed training at Fort Jackson and remained at Fort Jackson until 22 August 1960 when he was transferred to Fort Bragg for assignment to Company D, 1st Airborne Battle Group, 187th Infantry Regiment, for duty as a light weapons infantryman.

3.  On 9 December 1960, he was convicted pursuant to his pleas by a special court-martial of being absent without leave (AWOL) from 1 to 11 October 1969 and from 7 to 14 November 1960 and for unlawful escape from confinement.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay, and reduction to pay grade E-1.

4.  On 3 February 1961, he was convicted by a special court-martial of unlawful escape from confinement.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

5.  On 7 March 1961 while confined in the post stockade, the applicant was arrested by civil authorities on the charges of breaking and entering and larceny.

6.  On 30 March 1961, he was convicted by civil authorities and sentenced to serve 6 months under the custody of the North Carolina State Prison.

7.  On 24 May 1961, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) due to his conviction by civil authorities.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on 27 May 1961 and directed the issuance of an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on 14 June 1961 under the provisions of Army Regulation 635-206 due to conviction by civil authorities.  He completed 5 months and 23 days of active service and had 257 days of lost time due to AWOL and confinement.

10.  There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 33 provided that members convicted by civil authorities would be processed for separation.  A discharge could not be initiated unless the individual concerned declined to appeal the civil conviction or until the individual's appeals had been exhausted.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or AWOL.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7b, states 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's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case and properly characterize his service during the period in question.

3.  The applicant's contentions and supporting documents have been noted.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge to general under honorable conditions.


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)                                         AR20110012823



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ABCMR Record of Proceedings (cont)                                         AR20110012823



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