IN THE CASE OF:	  

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140003552 


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. 

2.  The applicant states he received a pardon by the State of Georgia for the reason he was separated from the Army on 28 March 1961. 

3.  The applicant does not provide any evidence. 

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 enlisted in the Regular Army on 15 October 1958.  He completed training and he was awarded military occupational specialty 121.10 (Combat Engineer).  He served in Germany from on or about 30 April 1959 to on or about 22 June 1960. 
3.  He was honorably discharged on 27 October 1960 for the purpose of immediate reenlistment.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that credited him with 2 years and 13 days of total active service. 

4.  He reenlisted in the Regular Army on 28 October 1960.  He was assigned to the 2nd Battle Group, 23rd Infantry Division, Fort Benning, GA. 

5.  On 10 February 1961, consistent with his plea, he was convicted by the Muscogee Superior Court, GA, of robbery by use of an offensive weapon.  He was sentenced to not less than 6 years and not more than 10 years of imprisonment. 

6.  On 23 February 1961, the applicant's immediate commander forwarded him a letter notifying him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) by reason of conviction by a civil court, with an Undesirable Discharge Certificate.  The commander indicated that if the applicant does not file an appeal within 30 days, his elimination would be effected.  The letter included a form letter for the applicant to complete indicating whether he:

* requested or waived consideration of his case by a board of officers
* requested or waived personal appearance before a board of officers
* requested or waived representation by military counsel or civilian counsel at his own expense
* was or not submitting a statement in his own behalf

7.  The applicant's acknowledgement letter and election of rights statements is not available for review with this case.  However, the acknowledgement letter would have advised him of his right to consult with legal counsel, the basis for the contemplated separation for a civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  There is no indication that he intended to or filed an appeal to his civil conviction.

8.  On 13 March 1961, subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for misconduct by reason of civil conviction and directed the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 28 March 1961.

9.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 625-216 and he was issued an Undesirable Discharge Certificate.  He completed 2 years, 2 months, and 27 days of active service during this period and he had 76 days of lost time. 

10. There is no indication he applied to the Army Discharge Review Board for a review of his discharge within that board's 15-years statute of limitations. 

11.  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).  That regulation provided, in pertinent part, 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 UCMJ was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 sets forth 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 was discharged under the provisions of Army Regulation       635-206, by reason of a civil conviction.  He was convicted by a civilian court for burglary and he was sentenced to imprisonment.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and notified him of this action.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Although he may have been pardoned by the State of Georgia for his crime, this had no bearing on his Army discharge processing as his conviction clearly brought discredit upon himself and the Army.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to 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)                                         AR20140003552





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003552



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1