IN THE CASE OF:	   

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130002766 


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 is sorry for being absent without leave (AWOL) and regrets it daily.  He was only 20 years of age at the time.  He further states he was not represented and not advised of his rights at the time.  He states he was sentenced to 1 year of confinement and 2 years of probation. 

3.  The applicant provides no additional documentation.

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 14 December 1967, he was inducted into the Army of the United States.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he held was private (PV2)/E-2.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was listed as:

* AWOL during the period 13 May through 22 June 1968
* civil confinement during the period 23 June 1968 through 1 June 1969
* AWOL during the period 2 June through 28 September 1969

4.  On 7 November 1968, he was tried in Fulton Superior Court, Fulton County, GA, for larceny of an automobile on 23 June 1968.  Pursuant to his plea of guilty he was sentenced to confinement for 3 years, to serve 1 year confinement with the balance probated, and a $200.00 fine.

5.  A U.S. Army Hospital, Fort McPherson, GA, Certificate states the applicant was examined on 29 January 1970.  It was recommended the applicant be separated from the military service under the provisions of Army Regulation
635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)).  The brief clinical abstract states the applicant noted that soon after being drafted in December 1967 he was hitch-hiking and he was picked up by a man who was driving a stolen automobile.  He stated that the police gave chase and the man who was driving the car apparently wrecked the car and then got into a shootout with the police.  During the shootout the applicant received a wound to his forehead and a bullet in his leg and had to be hospitalized at Grady Hospital for 3 months.  Following that, he was taken into court and sentenced to a period of time in prison for auto theft.  He noted the judge told him he would not be taken back into the Army, but he stated after he served 1 year and 19 days in prison he was released and he was indeed taken back into the Army and placed in the stockade.  The applicant noted he had one period of AWOL and no nonjudicial punishment or courts-martial.

6.  A Special Processing Detachment memorandum, subject: Elimination from the Army under the Provisions of Army Regulation 635-206 for Civil Conviction, undated, notified the applicant that he was being recommended for discharge from the Army under the provisions of Army Regulation 635-206, paragraph 33a for conviction by a civil court.  It states he was advised of his rights to:

* present his case before a board of officers
* submit statements in his own behalf


* be represented by counsel
* waive the above rights in writing
* be given a reasonable time and the opportunity to consult with counsel prior to waiving the above rights

7.  On 30 January 1970, he acknowledged receipt of a copy of the memorandum of notice.

8.  A Statement of Waiver of Board Hearing, dated 30 January 1970, shows he acknowledged he had been advised by counsel of the basis for the contemplated action to accomplish his separation for civil conviction under the provisions of Army Regulation 635-206.  He chose not to submit a statement in his own behalf.  He waived his rights in conjunction with this consultation.  He acknowledged he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issue to him.  He further acknowledged he understood that as a result of the issuance of an undesirable discharge under conditions other than honorable he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 3 February 1970, the applicant certified that he did not intend to appeal any or all of the convictions that he received on 7 November 1968 for automobile larceny in the Superior Court of Fulton County, GA.

10.  On 5 February 1970, the Special Processing Detachment commander stated in a memorandum that he was recommending the applicant be discharged prior to the expiration of his term of service under the provisions of Army Regulation 635-206 for a civil conviction.  Elimination was recommended because the applicant was convicted on 7 November 1968 by the Fulton County Superior Court on a charge of automobile larceny.  He received a 3-year sentence, to serve 1 year in prison, and he was released from the Georgia State Prison in Reedsville, GA in June 1969.  The applicant was AWOL from the Army at the time of his arrest and conviction and he did not return to military control until
29 September 1969.  The commander further stated the applicant had indicated by his failure to return to military duty upon release from prison that he did not intend to complete his service obligation.  He recommended the applicant be furnished an undesirable discharge.

11.  On 5 February 1970, his chain of command recommended he be given an Undesirable Discharge Certificate.


12.  On 16 February 1970, the appropriate authority approved the recommendation that the applicant be discharged from the service under the provisions of Army Regulation 635-206 because of a conviction by a civil court and directed the applicant be furnished an Undesirable Discharge Certificate.

13.  On 23 April 1970, he was discharged accordingly.  He completed 11 months and 16 days of total active service with 504 days of time lost due to AWOL and confinement.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-206, then in effect, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of conviction by civil court.

	a.  Section VI (Conviction by Civil Court) stated that an individual will be considered for discharge when he had been initially convicted by civil authorities, or action had been taken against him which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.

	b.  The discharge or recommendation for discharge would not be accomplished or submitted until the individual had indicated in writing that he did not intend to appeal the conviction, or until the time in which an appeal may be made had expired, whichever was earlier, or if the appeal had been made, until final action had been taken thereon.

	c.  An individual discharged for conviction by a civil court normally would be furnished an Undesirable Discharge Certificate.

16.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative 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 applicant’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  He had been AWOL from the Army at the time of his arrest.  He appeared in Fulton Superior Court on 7 November 1968 and he was found guilty of automobile larceny.  As a result, he was sentenced to 3 years (confinement for
1 year with the balance probated).  Upon his release from civil confinement he remained AWOL.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  Evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  In view of the foregoing, there is no basis for granting the applicant 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 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)                                         AR20130002766



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ABCMR Record of Proceedings (cont)                                         AR20130002766



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