RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            5 February 2004
	DOCKET NUMBER:   AR2003089219

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his discharge be upgraded from undesirable to general, under honorable conditions.

2.  The applicant states that he was a young man at the time he stole the car while on a 3-day pass.  He states that he was very young, immature, and drunk.  He states that under normal circumstances his stealing the car would not have happened, but because he was intoxicated it happened.

3.  The applicant provides no documents in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 18 March 1960.  The application submitted in this case is dated 1 April 2003.  

2.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

3.  The applicant's military records show that he was 18 years, 7 months, and 21 days of age when he enlisted in the Regular Army on 10 January 1958 for a period of 3 years.  He was trained in military occupational specialty 111.00 (Light Weapons Infantryman) and was assigned to Korea as his first permanent duty assignment.

4.  The applicant served in Korea from 14 June 1958 to 9 June 1959 without incident.  On 23 June 1959, he returned to the United states and was assigned to Fort Hood, Texas for duty.

5.  The applicant was absent without leave (AWOL) from his unit during the period 8 - 9 September 1959.

6.  On 15 September 1959, the applicant was convicted by a summary court-martial of one specification of disobeying a lawful order and one specification of being disrespectful in language.  He was sentenced to confinement at hard labor for 1 month and forfeiture of $50.00 pay per month for 1 month.  The sentence was approved on the same date.  The applicant was confined from 15 September - 8 October 1959.

7.  On or about 9 October 1959, the applicant was arrested by the Bell County Sheriff's Department for theft of personal property valued at $50.00 or more.  He was confined in the Bell County Jail from 10 October 1959 to 5 January 1960 awaiting trial.

8.  On 6 January 1960, in the 27th Judicial District Court of Bell County, Texas, the applicant, appearing before a judge only, pled guilty to the charge.  He was tried and convicted as an adult of the theft of personal property valued at $50.00 or more.  He was sentenced to 5 years in the State Penitentiary.  

9.  Also, on 6 January 1960, the applicant was placed on 5 years probation and the Bell County Sheriff agreed to act as his probation and parole officer.

10.  On 22 January 1960, the unit commander recommended that the applicant be discharged under the provisions of paragraph 22b, Army Regulation (AR) 635-206 with an undesirable discharge.  The unit commander made this recommendation based upon the applicant's bad record in the past.  The unit commander stated that, since the applicant had been assigned to the unit, his performance of duty had been unsatisfactory.  He stated that the applicant's appearance was consistently sloppy, that his attitude was surly and indifferent, and that he had received a court-martial for willful disobedience of an order.  He further stated that the applicant had been confined for 30 days by a court-martial and that, within 24 hours of his release from confinement, he stole a civilian vehicle, wrecked the vehicle, and spent 86 days in a civilian jail.  The applicant was tried, convicted, and sentenced to 5 years probation for theft of the vehicle.

11.  On 15 February 1960, the applicant indicated that he did not plan to appeal his civil court conviction of theft of personal property valued over $50.00 or appeal any part of, or all of the sentence he received in Trial Number 14, 260 in the District Court of Bell County, State of Texas.

12.  On 29 February 1960, the appropriate authority approved the applicant's discharge with an undesirable discharge by reason of unfitness due to civil conviction.  Accordingly, on 18 March 1960, the applicant was discharged after completing 1 year, 10 months, and 19 days of creditable military service and accruing 111 days of lost time.

13.  AR 635-206, then in effect, provided in pertinent part for the administrative separation or retention of enlisted personnel who had committed an act or acts of misconduct by reason of fraudulent entry in the service, conviction by civil court, and absence without leave or desertion.  Paragraph 22b of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.

14.  On 1 February 1971, the applicant applied to the ADRB for an upgrade of his discharge.  On 30 June 1971, the ADRB denied the applicant's request to upgrade his discharge.  The ADRB concluded that the applicant had been properly discharged.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant's misconduct, to include automobile theft, lost time due to AWOL and confinement, a court-martial conviction, and a civil conviction with 5 years probation diminished the quality of his service below that meriting a fully honorable or general discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated his misconduct.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 June 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 June 1974.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fne___  __jpi___  __kah___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089219	
SUFFIX		
RECON		
DATE BOARDED	20040205	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19600318	
DISCHARGE AUTHORITY	AR 635-206	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.9201	
2.	144.9227	
3.		
4.		
5.		
6.