IN THE CASE OF:	  

		BOARD DATE:  26 January 2012

		DOCKET NUMBER:  AR20110016246 


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 an honorable discharge.

2.  The applicant states he was young and immature.  He signed up for the Selective Service when he was 16 years old.  He was absent without leave (AWOL) for several days at a time during several time frames.  However, he always came back on his own.

3.  The applicant submits no additional evidence.

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.  On 16 May 1969, the applicant was inducted into the Army of the United States for a period of 2 years.  His records show his date of birth as 30 April 1949.  He held military occupational specialty 63B (Wheel Vehicle Mechanic).  The highest grade he attained was E-2.

3.  On 20 August 1969, the applicant received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 13 to 16 August 1969.

4.  On 22 September 1969, the applicant was convicted by a summary court-martial (SCM) for being AWOL from 12 to 17 September 1969.

5.  On 3 October 1969, the applicant received NJP for being AWOL from 28 September to 1 October 1969.

6.  On 28 October 1969, the applicant was convicted by an SCM for being AWOL from 19 to 23 October 1969.

7.  On 6 February 1970, the applicant received NJP for being AWOL from 31 January to 3 February 1970.

8.  On 31 December 1969, the applicant was reported for being AWOL.

9.  On 14 March 1970 while in an AWOL status, the applicant was apprehended by civil authorities for simple burglary.  The applicant was placed in civil confinement pending trial.

10.  On 16 June 1970, the applicant appeared before the 18th Judicial District Court, Parish of Pointe Coupee, Louisiana, upon the applicant's plea of guilty to the crime of simple burglary.  He was sentenced to confinement in the Louisiana State Penitentiary, Angola, Louisiana, for a period of 6 years.  The sentence was suspended and the applicant was placed on probation for a period of 5 years.

11.  On 15 September 1970, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) due to his conviction by a civil court.

12.  On 23 September 1970, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers and a personal appearance before a board of officers.  It appears that the requirement for a board of officers was waived.

13.  On 12 October 1970, the appropriate authority approved the recommendation and directed his reduction to pay grade E-1 and his discharge under the provisions of Army Regulation 635-206 with an Undesirable Discharge Certificate.

14.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant upon his separation shows the applicant was discharged under other than honorable conditions in pay grade E-1 on 20 October 1970.  He completed 11 months and 22 days of creditable active service with 163 days of lost time.

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

16.  Army Regulation 635-206, then in effect, provided that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year or more would be considered for elimination.  When such separation was warranted, a discharge under other than honorable conditions was considered appropriate.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of 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.

18.  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.  Records show that the applicant was 20 years of age at the time of his offenses.  In any case, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The evidence of record shows the applicant was tried and convicted by a civil court for simple burglary.  The offense that led to his discharge was a serious act of misconduct which warranted his discharge under other than honorable conditions.

3.  The applicant's misconduct diminished the quality of his overall service below that meriting an honorable or a general discharge.  He was properly separated for his misconduct and he has submitted neither probative evidence nor a convincing argument in support of his request.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

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)                                         AR20110016246



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ABCMR Record of Proceedings (cont)                                         AR20110016246



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