IN THE CASE OF:	

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120002330 


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 his general under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he made a juvenile mistake a long time ago in the Army and has paid for it ever since.  He adds he has never been in any trouble since the incident, and he has retired from a distinguished career in law enforcement and corrections.  He would like an upgrade in order to remove the stain from his service record and restore his pride in that service.

3.  The applicant provides:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* numerous commendations from the Commonwealth of Pennsylvania Department of Corrections for his service as a correctional officer
* an appointment as a Deputy Constable for Rostraver Township, Westmoreland County, PA

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 was born on 13 September 1943 and enlisted in the Regular Army (RA) for 3 years on 14 June 1962.  On 26 November 1964, he was honorably discharged as a Specialist Four (SP4/E-4) for the purpose of immediate reenlistment.  He reenlisted for 6 years on 27 November 1964.

3.  The applicant's military service was without incident until October 1966.  At that time, he was involved with two other individuals in a conspiracy to steal photographic paper from the Army.  The paper was valued at $100.00.

4.  The U.S. District Court for the District of New Jersey indicted the applicant in 1967.  He entered a plea of guilty and was found guilty.  On 28 July 1967, his chain of command initiated action to discharge him under the provisions of Army Regulation 635-206 for a civil court conviction.  On 11 August 1967, the approving authority approved his discharge with a GD.

5.  He was discharged on 16 August 1967 after a total of 5 years, 2 months, and 3 days of creditable service.  With the exception of his discharge for a civil court conviction, his service record was unblemished.

6.  The applicant submitted evidence to show he is a retired correctional officer in the Commonwealth of Pennsylvania, retiring as a Captain.  He also served a term as a Deputy Constable for a local township.

7.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

8.  Army Regulation 635-206, then in effect, provided, in pertinent part, 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 was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted an undesirable discharge (UD) was considered appropriate.

9.  Army Regulation 635-200 (Personnel Separations) provides that the Character of service will be determined only by the Soldier's military record of the current enlistment of current period of service, which record includes the Soldier's military behavior and performance of duty.

10.  Army Regulation 635-200 (Personnel Separations) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  With more than 5 years of commendable service, the applicant conspired with two individuals to steal photographic paper valued at $100 from the Army.  He was caught, indicted in U.S. District Court, pleaded guilty, and was convicted.  His chain of command then discharged him under the provisions of Army Regulation 635-206 based on his civil court conviction.

2.  Although Army Regulation 635-206 routinely called for the issuance of a UD, the approving authority approved a GD.  This suggests the approving authority weighed the applicant's service against his civil court conviction and determined the GD was more appropriate.

3.  Following discharge, the applicant compiled a strong record of public service in law enforcement and corrections.  He served as a town deputy constable and as a correctional officer, rising to the rank of Captain of the Guard.  On several occasions, he was commended for his handling of critical situations.

4.  The applicant's many years of post-service contributions to the safety and security of his community serve to mitigate his lone criminal act involving the theft of $100 worth of Government property.  In recognition of his commendable post-service, and in consideration of his 45 years of living with a less than fully honorable discharge, it would be appropriate to upgrade his GD to an HD.



BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his GD of 16 August 1967 to an HD.




      _______ _   _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)                                         AR20120002330





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002330



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1