BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130004254 


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, upgrade of his undesirable discharge.

2.  The applicant states:

	a.  he was too young at the time.

	b.  he spent the rest of his life doing good.

	c.  he spent 10 years for the crime he committed.

	d.  the time he spent in the Army National Guard (ARNG) and the Army was good, but after his service in Korea he was waiting to get out in 1957.

3.  The applicant provides:

* Service personnel records
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 9 August 1938.  Having completed 7 months and 
2 days in the ARNG, he enlisted in the Regular Army (RA) on 30 September 1955 for a period of 3 years.  He completed his training and was awarded military occupational specialty 111.00 (light weapons infantryman).  He served in Korea from 19 March 1956 to 14 June 1957.

3.  He went absent without leave (AWOL) on 11 October 1957.  On 21 October 1957, he was apprehended and confined by civil authorities.  

4.  On 3 December 1957, he was convicted by the U.S. District Court, Eastern District of Wisconsin, for larceny of a motor vehicle and burglary.    

5.  He was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) due to conviction by a civil court.  

6.  On 11 March 1958, he indicated he did not intend to appeal his conviction.  

7.  On 20 March 1958, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.

8.  He was discharged on 15 April 1958 under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) due to conviction by a civil court with an Undesirable Discharge Certificate.  He completed 2 years and 11 days of total active service with 187 days of time lost.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.

10.  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).  It 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 Uniform Code of Military Justice was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets for the basic policy 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 applicant contends he was too young at the time.  However, age is not a sufficiently mitigating factor.  Although he was 17 years of age when he enlisted in the RA, he successfully completed training.  In addition, he had completed 
7 months and 2 days of prior inactive service in the ARNG.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  He contends he spent the rest of his life doing good.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He signed a statement indicating that he did not intend to appeal his civil conviction.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  His record of service included 187 days of lost time.  He also committed a serious civil offense while in the Army.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130004254





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ABCMR Record of Proceedings (cont)                                         AR20130004254



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