IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150001743 


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.  He states that there is no error or injustice.  He was a very young man and not too worldly.  He has lived with this for over 50 years and feels bad for letting his troops and family down.  He served two and a half years in the Georgia State Penitentiary for burglary.  After his release he worked for Pontiac Motor Division of General Motors in Georgia before moving to Tennessee.  He is currently a business owner and he has been in business for 26 years.  His stupidity has caused him and his family a lot of problems.  He has always been up front throughout the years about his mistakes so that he could help other young people.  He would like to have his discharge upgraded to at least general, under honorable conditions for the sake of his children, grandchildren, and great grandchildren.

3.  He provides DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and five character references.
      
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.  His records show he enlisted in the Regular Army on 30 April 1963 at 
18 years of age.  He served in military occupational specialty 13A (Field Artillery Basic).

3.  On 23 November 1963, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully appropriating items in the amount of $1.60.

4.  His DA Form 20 (Enlisted Qualification Record) shows he was confined during the following periods:

* 16 March to 14 April 1964, civil authorities
* 11 June to 6 July 1965, military authorities
* 16 November 1965

5.  His DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows he was convicted by Special Court-Martial of:

* using disrespectful language towards a superior noncommissioned officer (NCO)
* disobeying a lawful order from a superior NCO
* striking a superior NCO

6.  On 18 November 1965, he was convicted in the Harris County Superior Court, GA, of burglary, and sentenced to three years of labor at the Penitentiary, or to such other place as directed.

7.  On 26 November 1965, the applicant acknowledged by memorandum, subject:  Appeal from Civil Court Conviction, that he:

* did not intend to appeal said conviction
* understood that the information furnished herein was for use in connection with possible discharge proceedings against him 
* understood that the type of discharge to be awarded would in most cases be under other than honorable conditions


8.  On 13 December 1965, his commander recommended the applicant be discharged under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) due to conviction by civil court with an undesirable discharge.

9.  On 15 December 1965, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-206 due to civil conviction and directed that the applicant be issued an Undesirable Discharge Certificate.

10.  On 21 January 1966, he was discharged accordingly.  He completed 
2 years, 6 months, and 15 days of net active service and he had 68 days of lost time.

11.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  He provides five character references from clergy, former military members, and the Henry County (TN) Sheriff.  These references describe the applicant as dependable, trustworthy, respectful, and hardworking.  Further, they stated that the applicant is remorseful for the incident that caused his discharge and has strived to be a productive member of society.  They recommend upgrading his discharge.

13.  Army Regulation 635-206, then in effect, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of conviction by civil court.

	a.  Section VI (Conviction by Civil Court) stated that an individual would be considered for discharge when the individual had been initially convicted by civil authorities, or action had been taken against the individual 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.  The discharge or recommendation for discharge would not be accomplished or submitted until the individual had indicated in writing that he did not intend to appeal the conviction, or until the time in which an appeal may be made had expired, whichever was earlier, or if the appeal had been made, until final action had been taken thereon.

	c.  An individual discharged for conviction by a civil court normally would be furnished an Undesirable Discharge Certificate.

14.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his undesirable discharge.

2.  His record shows he was 18 years of age at the time of his enlistment and 
20 years of age at the time of the offense for which he was convicted by a civil court.  He contends he was young and immature; however, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His post-service achievements are noteworthy; however, the evidence of record shows a pattern of misconduct that included acceptance of NJP, a special court-martial conviction, and a civil conviction for burglary.  As a result, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The available evidence of record shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time and the type of discharge directed and the reasons for separation were appropriate.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  Based on the foregoing, the applicant’s request should be denied.


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)                                         AR20150001743





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ABCMR Record of Proceedings (cont)                                         AR20150001743



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