IN THE CASE OF: BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150015714 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150015714 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150015714 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 under other than honorable condition discharge to a fully honorable discharge. 2. The applicant states: * he was just 17 years of age when he joined the Army * he went to Korea and when he returned to the States, he was stationed at Fort Carson, CO * a friend talked him into taking him to visit the friend's parents; he was young and did not know that such action was not allowed * they got hungry on the road and broke into a house to get food * he (the applicant) was arrested in 1966 and pled guilty; he realizes that he should not have left the base with his friend * he has not been in trouble since and he now needs medical benefits from the Department of Veterans Affairs 3. The applicant does not provide any additional 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 was born in December 1946 and enlisted in the Regular Army at 17 years and 6 months of age on 9 June 1964. He completed the required training and he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman). 3. He served in Korea from 11 November 1964 to 26 November 1965. While there, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows: * on 21 May 1965, for leaving his post as a sentinel without being properly relieved * on 1 September 1965, for being absent from his appointed place of duty 4. Following completion of his tour in Korea, he was reassigned to Fort Carson, CO. He was assigned to the 2nd Battalion, 10th Infantry Regiment, 5th Infantry Division. 5. On 4 February 1966, he departed his unit in an AWOL status. While AWOL, he was arrested by civil authorities for the civilian charge of breaking and entering. He was convicted by the Circuit Court of Newton County, MO, and sentenced to confinement at hard labor for 1 year or more. 6. On 12 April 1966, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)) for civil conviction. The immediate commander recommended an Undesirable Discharge Certificate. 7. An undated statement shows the applicant acknowledged receipt of the notification of separation action. He indicated that he was aware he would receive an undesirable discharge due to his conviction and did not intend to appeal his conviction. He elected not to submit a statement on his own behalf. 8. On 13 April 1966, the applicant's immediate commander recommended the applicant's elimination from the Army with the issuance of an Undesirable Discharge Certificate. 9. On 5 May 1966, the separation authority approved the discharge action and ordered the applicant discharged under the provisions of AR 635-206 for willful misconduct by reason of civil conviction and directed that he be furnished an Undesirable Discharge Certificate and reduced to the lowest enlisted grade. The applicant was accordingly discharged on 2 June 1966. 10. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of AR 635-206 with an under other than honorable conditions characterization of service. He was issued an Undesirable Discharge Certificate. He completed 1 year, 7 months, and 25 days of active service and he had 119 days of lost time. 11. On 14 May 1977, the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. REFERENCES: 1. AR 635-206, paragraph 24, then in effect, provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, would, as a general rule, be retained in service. If the offense was indicative of an established pattern of frequent difficulty with the civil authorities, the member's military record was not exemplary, and retention was neither practicable nor feasible, a recommendation for separation would be submitted through the major command headquarters to the Adjutant General. Furthermore, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policies and procedures 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: 1. The evidence of record shows the applicant departed his unit in an AWOL status and while he was AWOL he was arrested and convicted by a civilian court of breaking and entering. His conviction yielded a sentence equivalent to 1 or more years of confinement at hard labor. Accordingly, his chain of command initiated separation action against him and he was properly notified. 2. He acknowledged the separation action and the intent of his commander to give him an undesirable discharge. He further indicated that he did not intend to appeal his civil conviction. All requirements of law and regulation appear to have been met and his rights were fully protected throughout the separation process. He received the characterization of service normally considered appropriate for the basis for his separation. 3. Although he was 17 years and 6 months of age at the time of enlistment, he was nearly 19 years of age when he committed his offense. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. Additionally, there is no evidence in the available records and he has not provided evidence showing that his acts of indiscipline were the result of his age. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015714 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015714 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2