IN THE CASE OF:  	  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20140001770 


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, an upgrade of his undesirable discharge (UD) to a general discharge (GD).

2.  He states he served in the military with great pride and joy.  He believes the Army should not have discharged him based on his civil conviction because he served honorably.  He was a victim of circumstances, and he was under the influence of alcohol.  He was released to civil authorities.  He had never seen the inside of a jail, and detectives told him that if he signed documents stating he had committed some old unsolved cases, they would talk to the judge and it would help him.  He soon learned the statements were not true.  He feels he was not properly represented by a competent attorney.  He pled guilty and ruined his reputation.  He states he has gained respect and has turned out to be a good veteran and a model citizen.  He is 78 years of age and needs his discharge upgraded to continue to receive benefits from the Department of Veterans Affairs (VA).  

3.  He provides no additional evidence in support of his application.

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 16 August 1957, with prior service in the Army National Guard, the applicant enlisted in the U.S. Army Reserve.  On 10 September 1957, he entered active duty.  On 12 July 1958, he enlisted in the Regular Army for a period of 
6 years.  The highest rank/grade he held was sergeant (SGT)/E-5.  

3.  On 29 October 1962, his battle group commander informed him he was imposing punishment upon him pursuant to Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 0545 hours on
26 October 1962 until 0805 hours on 27 October 1962.  The applicant acknowledged receipt of the notice and did not demand trial by court-martial.  On 31 October 1962, his battle group commander reprimanded him for misconduct and reduced him to the rank of corporal/E-4.  

4.  Section 10 (Remarks) of his DA form 24 (Service Record) shows, in part:

	a.  On 20 November 1962, his status changed from duty to confined in the post stockade pending investigation of a violation of Article 122, UCMJ (robbery).

	b.  On 23 November 1962, his status changed from confined in the post stockade to confined in the hands of civil authorities pending investigation for breaking, entering, and larceny.

	c.  On 8 February 1963, his status changed from confined in the hands of civil authorities to AWOL following a finding of guilty to the charge of robbery by use of an offensive weapon.  He was sentenced to serve 12 to 15 years in the Georgia Penal System.   

5.  The complete facts and circumstances of his discharge are not available.  However, his record does include:

	a.  Special Orders Number 77, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 3 April 1963, showing he was to be discharged effective 2 April 1963, under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), by reason of conviction by a civil court with an Undesirable Discharge Certificate; and

	b.  his DD Form 214 for the period ending 2 April 1963 showing he was discharged under the provisions of Army Regulation 635-206 by reason of conviction by a civil court with an Undesirable Discharge Certificate.  

6.  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 of the regulation provided that 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 UCMJ 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.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a GD 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 available evidence does not support the applicant's request for an upgrade of his UD to a GD.

2.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Further, an applicant's current age and the passage of time are not normally reasons for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  The available records show he was sentenced to a prison term of 12 to 15 years after being found guilty of robbery by use of an offensive weapon.  The available records do not show and he has not provided documentary evidence showing his conviction by civil authorities was improper.  In the absence of evidence showing otherwise, it must be presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

4.  Based on his conviction by civil authorities, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

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)                                         AR20140001770





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ABCMR Record of Proceedings (cont)                                         AR20140001770



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