IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110015468 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  He states he was involved in a civil matter in which he wrote a bad check after he had been drinking.  He got into a fight over something someone said.  He received an apology because the accusations were not true; however, it was too late because he was already being processed for separation the next day.   

3.  He provides:

* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* An excerpt of his résumé

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 Regular Army on 18 October 1956 for 3 years.  After completion of training, he served in military occupational specialty 283.10 (Radio Relay and Carrier Operator).  His record shows he reenlisted in the Regular Army on 21 May 1959 for an additional 3 years.

3.  His record contains documents from the U.S. Department of Justice, Federal Bureau of Investigation (FBI) that show he was charged with the following:

* 20 April 1958 – juvenile offense
* 12 October 1959 – grand larceny (automobile) while absent without leave (AWOL) from the Army
* 24 December 1959 – grand larceny
* 16 June 1960 – forgery

4.  The applicant’s DA Form 24 (Service Record) shows private first class/E-3 was the highest grade he attained while serving on active duty.  

5.  His record contains two DA Forms 26 (Record of Court-Martial Convictions) which show he was convicted twice by summary court-martial for:

* Stealing gasoline on 25 August 1957
* Going AWOL from 9 to 11 October 1959  

6.  All the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, a memorandum, dated 27 April 1960, shows a request was made to the Commanding General, Fort Bragg, NC to discharge the applicant under the provisions of Army Regulation 635-206 (Personnel Separations – Conviction by Civil Court).  This memorandum shows:

* He was charged with grand larceny on 24 December 1959
* A superior court tried and convicted him on 1 April 1960
* He was sentenced to 90 days in a civilian jail and placed on probation for a term of 3 years

7.  His record contains a first endorsement, which shows he would be discharged under the provisions of Army Regulation 635-206, reduced to private/E-1, and would be furnished an undesirable discharge.

8.  His DD Form 214 shows that on 4 May 1960 he was discharged under the provisions of Army Regulation 635-206 and his character of service was listed as under other than honorable conditions.  He completed 5 months and 18 days of net service during this period and had 171 days of lost time due to AWOL and confinement. 

9.  He provided an excerpt of his résumé which lists his work experience for 1967 through 1995.  He worked as a production supervisor/manager, plant manager, and was part owner of a large scale janitorial company. 

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for civil conviction.  Paragraph 33 of the regulation provided that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate.  

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  He contends that part of the reason for his undesirable discharge was based on an untrue statement which caused a fight.  However, the applicant has provided no evidence corraborating this statement.

2.   While a complete separation packet was not available for review, based on his military personnel records and the FBI documents it is apparent that his discharge was based on several incidents of misconduct, which included a civil court conviction.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

4.  The type of separation directed and the reasons for that separation were appropriate considering all of the facts of the case.

5.  His post-service employment was noted; however, based on his 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 general discharge.
6.  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)                                         AR20110015468





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ABCMR Record of Proceedings (cont)                                         AR20110015468



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