IN THE CASE OF:
BOARD DATE: 24 April 2014
DOCKET NUMBER: AR20130015424
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 that his undesirable discharge (UD) be upgraded to general, under honorable conditions.
2. The applicant states when he returned from the Republic of Vietnam (RVN), he was assigned to Fort Lee, Virginia. One day he decided to go to Petersburg with some other Soldiers from the post. They drank alcoholic beverages and became separated. This was his first time drinking alcohol. He became drunk, confused, and passed out. During the night he heard an alarm which was an alert for all military personnel to return to their duty station. The next thing he remembers is waking up in jail. Later it was explained to him that he was arrested for statutory burglary. He was sentenced to the penitentiary for 3 years. One year was suspended. He received an undesirable discharge from the Army. It has been 45 years since his discharge. His discharge has been a blemish on his record which has affected every aspect of his life, particularly when seeking employment. He made some mistakes in his youth and is surly not doing the same things now. He is a mature adult and is taking steps to better his life. As a part of that process, he is trying to correct his military record.
3. The applicant provides a copy of his 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. On 8 November 1965, the applicant enlisted in the Army Regular Army. He completed his initial training and was awarded military occupational specialty 76A (Supplyman). He served 1 year in the RVN and was then assigned to Fort Lee, VA.
3. On 22 January 1968, the applicant was convicted in civilian court of statutory burglary, a felony. He was sentenced to 3 years in the state penitentiary. One year was suspended on the condition of good behavior for a period of 5 years after his release from custody.
4. On 2 February 1968, the applicant's commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-206 due to conviction by civilian court. The commander stated the applicant had been sentenced to 3 years confinement.
5. On 25 March 1968, the separation authority approved the recommendation for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).
6. Accordingly, he was discharged under other than honorable conditions on
26 April 1968. He had completed a total of 1 year, 8 months and 20 days of creditable active duty service and had 269 days of lost time.
7. On 28 July 1977, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. The ADRB concluded he was properly and equitably discharged due to a civilian conviction and denied his request.
8. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 33 of the regulation provided that members convicted by civil authorities would be considered for separation. An UD was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his UD should be upgraded to general under honorable conditions because he is now a mature adult who is taking steps to better his life.
2. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge and the reasons therefore were appropriate considering all of the facts of the case.
3. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20130015424
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ABCMR Record of Proceedings (cont) AR20130015424
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