BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150006715 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 to honorable of his under other than honorable conditions discharge. 2. The applicant states: * he is 72 years old and has some unresolved issues concerning his service in the Army * in 1962 he was in Iowa (IA) and met a recruiter; the recruiter enlisted him in the Army * as part of his enlistment, the recruiter sent a police clearance waiver request to Fifth Army headquarters in Chicago, Illinois (IL); the waiver was approved * he went to Fort Leonard Wood, Missouri (MO) for initial training and, after 2 months, he took Christmas leave back home to South Carolina (SC) * while home on leave, the local police told him he needed to leave SC and go back to IA as his SC probation officer intended to lock him up (emphasis added) * he went back to IA and stayed with his uncle for the remainder of his leave; after his leave he returned to Fort Leonard Wood (emphasis added) * two deputies from SC came to Fort Leonard Wood to pick him up * his company commander asked him how he (the applicant) could be obligated to both the Federal government and a State at the same time * there was a judge in SC who was supposed to sign papers releasing him from probation, but the applicant has been unable to locate these papers (emphasis added) * the applicant feels he was unjustly pulled out of the military as a result of the actions of his probation officer in Anderson, SC * in addition to requesting the upgrade of his discharge, he would like to know if he has any compensation due as a result of being unjustly discharged 3. The applicant provides no additional documentary 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 November 1962. 3. His DD Form 4 (Enlistment Record - Armed Forces of the U.S.) contains the following entries: a. Item 28 (Have you ever been convicted of a felony or any other offense, or adjudicated a youthful offender or juvenile delinquent) - Breaking and Entering (juvenile delinquent), December 1959 and January 1960, Anderson, SC, probation, released 5 March 1962 (item 39 (Remarks) is referenced). b. Item 39 - waiver granted by Main Station Commander, RCA, Major, Artillery, Commanding, per authority of paragraph 9e(1)(b), Army Regulation 601-210. c. The applicant's oath of enlistment was executed in Des Moines, IA. 4. His available service record contains: a. DA Form 24 (Service Record) shows: (1) Section 2 (Chronological Record of Military Service), the applicant was assigned to Fort Leonard Wood, MO on or about 15 November 1962. (2) Section 6 (Time Lost under Section 6(a) Appendix 2b Manual for Courts-Martial and Subsequent to Normal Expiration Term of Service) shows the applicant was confined from 24 January 1963 to 22 July 1963. (3) Section 10 (Remarks) states: * the applicant was apprehended and confined by civilian authority from Waynesville, MO effective 24 January 1963 * the MO civil authority passed the applicant to the civil authority in Anderson, SC because of a violation of probation * the applicant had been convicted of housebreaking and larceny; he was sentenced to 3 years confinement and 5 years of probation effective 8 February 1960 * probation was ordered revoked by General Sessions Court, Anderson County, SC effective 8 March 1963 due to probation violations b. Court of General Sessions Order of Revocation, Anderson County, SC, signed 8 March 1963, showed: * the applicant was convicted on 8 February 1960 of housebreaking and larceny (no value of the stolen property was specified); he was sentenced to 3 years confinement and 5 years of probation * the applicant violated his probation by going about the Anderson County Gang while intoxicated; driving a motor vehicle in a reckless manner; failing to avoid injurious habits of conduct; leaving the State of SC without permission; failing to report to his probation office as directed (emphasis added) * the suspended sentence was ordered revoked c. On 18 June 1963, the applicant stated he did not intend to appeal the revocation of his probation and sentence to the Public Works of Anderson County. 5. The applicant's discharge packet is not available for review. His service record does, however, contain the following: a. An undated document from Headquarters, Fort Leonard Wood, titled Action of the Commanding General, signed by Major General LES. The document approved the recommendation for discharge and directed the applicant receive an under other than honorable conditions characterization of service. A hearing before a board of officers was waived in accordance with change 1, Army Regulation 635-206 (Personnel Separations - Misconduct (Fraudulent Entry, Conviction by Civil Court, Absent without Leave, Desertion). b. Memorandum, dated 16 July 1963, issued by Headquarters, Fort Leonard Wood, subject: Conviction by Civil Authorities, addressed to the Adjutant General Transfer Point, stated the applicant was directed to be reduced to the rank/grade of private/E-1 and discharged under other than honorable conditions. 6. His DD Form 214 shows he was discharged under other than honorable conditions on 22 July 1963. He completed 2 months and 9 days of net active creditable service with 180 days of lost time. He was not authorized any awards or decorations. 7. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 8. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. 9. Army Regulation 635-206, in effect at the time, provided administrative separation guidance for enlisted personnel who have committed an act of misconduct. This regulation addressed cases where Soldiers had been convicted by a civil court for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) was death or confinement in excess of 1 year. The character of service was normally under other than honorable conditions. 10. The Manual for Courts-Martial shows the following maximum punishments for the listed offenses: * Article 121 (Larceny) - for property other than military property of a value of $500 or less: bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months; for nonmilitary property valued for more than $500: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years * Article 130 (Housebreaking) - dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years 11. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. Paragraph 3-1 states the Army, by law, may pay claims for amounts due to applicants as a result of correction of military records. DISCUSSION AND CONCLUSIONS: 1. The applicant requests upgrade of his under other than honorable conditions discharge. He bases his request on a contention he was improperly and unjustly discharged from the Army for having been convicted by civil authority. 2. The evidence of record clearly shows the applicant was still serving a 5-year period of probation, adjudged by a court in Anderson County, SC, when he enlisted in the Regular Army. Also evident is that, by being in Iowa at the time of his enlistment, he had violated the terms of his probation. a. While he alleges an SC judge signed a release from his probation, he provides no supporting documentary evidence. b. In his statement, he states, while on leave in SC, he was told by the local police his probation officer intended to lock him up. Rather than addressing the situation, he chose to flee SC, going first to IA, then back to Fort Leonard Wood. This suggests there was no release signed by a judge and the applicant was seeking to avoid the requirements of his probation. 3. His DD Form 4 also appears to suggest he had been released from his probation effective 5 March 1962. His record does not have any documentation which might support this entry. 4. The applicant's discharge packet is not available for review. Nonetheless, there is no evidence submitted by the applicant or from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time. a. The Board presumes regularity and that actions taken by the Army are administratively correct. All evidence indicates the requirements of law and regulations were presumably met, and the rights of the applicant were fully protected throughout the separation process. Absent any evidence to the contrary, regularity must be presumed. b. To be discharged for a civil conviction under the provisions of Army Regulation 635-206, the maximum sentence of the comparable offense under the UCMJ must include at least 1 year of confinement. Article 130 of the UCMJ shows the maximum sentence for housebreaking as including 5 years of confinement. It appears at least one of the offenses of which the applicant was convicted in civil court met the regulation's criteria. 5. Based upon the foregoing, the applicant's service does not appear to have met the standards of acceptable conduct required for an honorable or general discharge. 6. As to his request for compensation, the law empowers the Board to pay claims for amounts due to applicants as a result of correction of military records. In this case, it does not appear a correction should be made to the applicant's records which would require compensation to be paid. 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) AR20150006715 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006715 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1