BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120006703 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.  

2.  He states he was 17 years of age when he enlisted, "got mixed up with some older fellas [sic] and was convicted of interstate car theft."  He would like to clear his conscience.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); correspondence from the United States District Court, Northern District of Texas; and correspondence from the Georgia Peace Officer Standards and Training Council.

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 October 1945.

3.  On 19 October 1962, he enlisted in the Regular Army for a period of 3 years.  He was 17 years of age at the time, and he enlisted with the consent of his parents.

4.  After completing Basic Combat Training, on 13 January 1963, he was assigned to Fort Sill, OK, for Advanced Individual Training.

5.  On 7 May 1963, the United States District Court for the Northern District of Texas at Lubbock adjudged the applicant to be a juvenile delinquent and sentenced him to be committed to the custody of the Attorney General for 3 years to be dealt with as a juvenile delinquent.  The execution of his commitment to the custody of the Attorney General was suspended and he was placed on probation for 3 years.  The court proceedings show he admitted to having unlawfully and knowingly transported in interstate commerce a stolen motor vehicle, knowing the same to have been stolen.  

6.  On 7 May 1963, his commander recommended he be discharged from the service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), paragraph 22a, with an undesirable discharge (UD) for a civil conviction.  In his recommendation, his commander stated the applicant had received a 3-year sentence to probation for auto theft and was in the hands of civilian authorities.  

7.  On 8 May 1963, he signed a statement acknowledging the punishment of 3 years' probation imposed on him by a civilian court for auto theft.  He stated he did not intend to appeal the punishment.

8.  On 16 July 1963, the separation authority approved his discharge and directed he receive DD Form 258A (UD Certificate).

9.  On 17 July 1963, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit without proper authority on 29 June 1963 and failing to comply with orders from two noncommissioned officers.

10.  On 22 July 1963, he was discharged in accordance with the separation authority's instructions.  His DD Form 214 shows his service was characterized as under other than honorable conditions.

11.  On 20 March 1970, The Adjutant General informed him the Army Discharge Review Board had denied his request for a change in the type and nature of his discharge.

12.  He provides:

   a.  correspondence he received from the United States District Court, Northern District of Texas, showing his case was made inactive on 30 April 1965 and was not a felony since it was under the Juvenile Delinquency Act, and
   
   b.  correspondence he received from the Georgia Peace Officer Standards and Training Council stating his conviction would not prohibit him from becoming certified as a peace officer in the State of Georgia.

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  The regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.

     b.  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.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.  
2.  His record shows he was 17 years of age at the time of his offenses.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Shortly after he enlisted, he was convicted by a civil court of unlawfully and knowingly transporting in interstate commerce a stolen motor vehicle that he knew was stolen.  He later received NJP for being absent from his unit without authority and failing to comply with orders.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or honorable 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 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)                                         AR20120006703





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ABCMR Record of Proceedings (cont)                                         AR20120006703



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