BOARD DATE: 9 August 2012
DOCKET NUMBER: AR20120002254
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, in effect, an upgrade of his undesirable discharge.
2. He states he was incarcerated for stealing two typewriters while serving in the military in Alabama. He sold the typewriters to support his fatherless family back home. He learned his lesson from this incident and has been a good citizen since.
3. He provides his Certification of Military Service.
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 complete military records are not available to the Board for review. However, there are sufficient documents available for the Board to conduct a fair and impartial review of this case.
3. It appears he was ordered to active duty from the Enlisted Reserve Corps on 27 August 1956.
4. His discharge packet is not contained in his records and there is no available DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). However, Headquarters, Fort McClellan, Alabama, Special Orders Number 5, dated 7 January 1958, show he was discharged under the provisions of Army Regulation 635-206 (Personnel Separations Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)), effective 10 January 1958. These orders state an Undesirable Discharge Certificate would be mailed to the Warden, Kilby Prison, Montgomery, Alabama, for delivery to the applicant upon his release from confinement.
5. The Certification of Military Service he was issued shows he served in the U.S. Army Reserve during the period 27 August 1956 to 10 January 1958.
6. Army Regulation 635-206 established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of conviction by civil court. This regulation provided that an individual would be considered for discharge when he was initially convicted by civil authorities or action was taken against him which was tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year. An undesirable discharge was normally considered appropriate.
7. 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.
8. Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.
a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.
b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
9. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, the presumption of administrative regularity must be applied. As such, even though the applicant's records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations based on his admission that he was incarcerated for stealing two typewriters while serving in the military in Alabama.
2. Based on the foregoing, there is no basis to upgrade the applicant's 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 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.
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