BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120011116 


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 undesirable discharge (UD) be upgraded to general under honorable conditions (GD).

2.  The applicant states there is no documentation to support the UD.  He served in Korea and for 2 months and 17 days beyond his normal separation date.  He did not receive any documents when he was discharged.  His civilian conviction was for petty theft and he did not have any confinement.  He was denied his right to counsel, did not know his discharge was negative until 1963, and did not receive a copy of his discharge document until 2004.

3.  The applicant provides copies of:

* Department of Veterans Affairs (VA) inquiry and response letters
* a request for replacement of records (DA Form 214)
* his DD Form 214
* the index page from the Manual for Courts-Martial
* three pages from his enlisted record 
* notes referencing the court actions concerning his civilian conviction
* four pages from the July 1966 edition of Army Regulation 635-200
* an internet article titled "Army Criminal History Waivers”

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's service records were damaged in the fire at the National Personnel Records Center in 1973.  The available documents are partially burnt and have illegible entries.  However, there are sufficient documents available to conduct a fair and impartial review of this case.  

3.  The applicant enlisted in the Regular Army on 28 June 1951, completed training, and was awarded military occupational specialty (MOS) 3359 (Tracked Scraper Operator) with award of MOS 1603 (Antiaircraft Artilleryman) in August 1953.

4.  A summary court-martial found him guilty of being absent without leave (AWOL) from 14 August 1953 through 11 September 1953.

5.  On 3 May 1954, he was confined by civil authorities and (apparently) charged with burglary.  

6.  On 27 May 1954 the applicant's plea of not guilty was changed to a plea to guilty of the misdemeanor of petty theft.  

7.  On 30 June 1954, he was sentenced to 6 months confinement in the county jail.  The sentence to confinement was suspended and he was placed on probation for 2 years.

8.  On 17 September 1954, the applicant was discharged with a UD in accordance with Army Regulation 615-366.  He had 2 years, 9 months, and 7 days of active duty service with 28 days of lost time.

9.  On 22 February 1955, the applicant was notified that he did not meet the requirements for reenlistment.  He was advised that he could apply to the Army Discharge Review Board if his wished to have his discharge reviewed.

10.  In 1963, the applicant applied to the VA for a home loan.  The VA requested information related to the applicant's discharge and was advised that no documents related to his discharge were available. 

11.  The regulation and arguments provided by the applicant in support of his application relate to discharges for unsatisfactory performance or provisions for court-martials, not convictions by civil court. 

12.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

13.  Army Regulation 615-366, section IV (Conviction by Civil Court), as then in effect, provided specific instructions and guidance for the administrative separation of service personnel convicted by a civilian court.  The provisions of Army Regulation 615-366 were incorporated into a revised Army Regulation  635-200 at chapter 14.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  It states:

	a.  A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	b.  An under other than honorable conditions discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  (At the time of the applicant's separation an under other than honorable conditions was called an undesirable discharge.)

	c.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.


15.  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.  Paragraph 2-9 states that 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.  While there is no evidence of how long prior to his trial the applicant was confined, he did plead guilty to petty theft and was sentenced to 6 months confinement.  This sentence was suspended and he served on probation for 2 years.  

2.  The applicant has provided no evidence that he was denied due process at the time of his discharge.  His cited several references to court-martial regulations that have no bearing on his case in as much as he received an administrative discharge, not a court-martial.  There is insufficient evidence to determine if the applicant's offense would have warranted trial by court-martial and the issuance of a punitive discharge.

3.  Not only did the applicant not serve 2 months beyond his period of obligated service, he was discharged 3 months prior to the end of his period of obligated active duty and had 28 days of lost time due to AWOL. 

4.  While it appears the documentation related to his discharge processing was not available as far back as 1963 the absence of this documentation is irrelevant to the instant case.  The applicant himself provided documentation showing his civilian conviction for theft and that he was discharged based on that civilian conviction. 

5.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense for which he requested discharge and is appropriate for the applicant's overall record of military service.

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)                                         AR20120011116





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ABCMR Record of Proceedings (cont)                                         AR20120011116



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