IN THE CASE OF:  

		BOARD DATE: 14 August 2014

		DOCKET NUMBER:  AR20140000351 


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 be upgraded to a general discharge.
 
2.  The applicant states that he borrowed a friend's car and was unable to return it.  He was given a choice of trial or enlistment.  He enlisted and  was convicted after enlistment.  This incident had nothing to do with his military service.

3.  The applicant provides a copy of his:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 
* 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 inducted on 15 March 1968.  He held military occupational specialty 11B (Light Weapons Infantryman).

3.  A 26 September 1968 summary court-martial found him guilty of failing to go to his appointed place of duty on 3 September 1968 and for being absent without leave (AWOL) from 4 to 11 September 1968.

4.  His DA Form 20 (Enlisted Qualification Record) show he accrued time lost  totaling over 260 days as follows:

		From					To						DAYS					REASON
4 Sep 1968
10 Sep 1968
7
AWOL
10 Oct 1968
19 Dec 1968
80
AWOL
23 Dec 1968
30 Dec 1968
8
CONF
31 Dec 1968
31 Dec 1968
1
AWOL
1 Jan 1969
17 Jun 1969
166
CIV CONF
5.  On 24 March 1969, the applicant's immediate commander recommended the applicant's discharge from military service under the provisions of Army Regulation 635-206 (Personnel Separations  – Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion).  The commander noted the applicant had been convicted and sentenced by a civil court.  He had been convicted of felonious auto larceny and sentenced to imprisonment for 3 to 5 years.

6.  The applicant waived his rights and indicated he would not submit a statement in his own behalf.  He further indicated he did not intend to appeal the civil conviction.

7.  The applicant's chain of command recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

8.  On 26 March 1969, the separation authority approved the applicant's separation and directed the issuance of an Undesirable Discharge Certificate.  On 18 June 1969, the applicant was discharged accordingly

9.  His DD Form 214 shows his character of service as Under Conditions Other Than Honorable with the issuance of a DD Form 258A (Undesirable Discharge Certificate).  He completed a total of 6 months and 17 days of creditable active duty military service with 262 days of time lost.

10.  On 30 April 1975, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 stated members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

12.  Larceny, wrongful appropriation of any motor vehicle, is a violation of Article 121 of the Uniform Code of Military Justice and the punishment is a dishonorable or bad conduct discharge, two years confinement, and total forfeiture.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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 states 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 shows the applicant was convicted by a civil court of felonious auto larceny and he was sentenced to imprisonment for 3-5 years, a crime he committed prior to his induction into the Army.  His commander initiated discharge proceedings accordingly.

2.  The applicant's military record shows he was convicted by a summary court-martial and had 262 days of time lost.

3.  The applicant's administrative separation was accomplished in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the narrative reason were therefore appropriate and equitable.

4.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, 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)                                         AR20110020137



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ABCMR Record of Proceedings (cont)                                         AR20140000351



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