IN THE CASE OF: BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150005291 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 conditions (UOTHC) discharge to an honorable discharge (HD). 2. The applicant states: a. He enlisted in the U.S. Army at the age of 17. He was stationed at Fort Carson, Colorado. He went off base with friends and had some drinks. The drinking age in Colorado was 18. When it was time to return to base he did not have a ride or any money to return. He borrowed a car without the owner’s permission in order to return to base to avoid being absent without leave. b. He was pulled over and arrested for joyriding. He was sentenced to a 1 year confinement in the Colorado correctional facility. He was told he would have to face charges imposed by the military in addition to the 1 year sentence or be discharged and his UOTHC discharge would be upgraded to HD. c. He was young, scared, and did not realize how his decision would affect his future. He took what he thought was the easy way out. He served his time and was discharged. He now realizes that he made the wrong decision. 3. The applicant provides a self-authored statement and a letter of support. 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 3 January 1968 at the age of 17. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. His DA Form 20 (Enlisted Qualification Record) shows he had lost time due to confinement for the following periods: * 25 August 1968 (military confinement) * 30 September – 5 October 1968 (civilian confinement) * 28 October – 4 November 1968 (civilian confinement) * 24 January – 16 April 1969 (civilian confinement) 4. On 24 January 1969, he pled guilty and was convicted by civil authorities for joyriding and was sentenced to confinement for 12 months by the State of Colorado. 5. On 17 February 1969, his immediate commander notified him of his intent to initiate separation action against him 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. This memorandum informed him of his right to request military counsel, retain civilian counsel, and submit statements on his behalf. There is no information available pertaining to his response to this notification. 6. On an unspecified date, the approving authority approved the applicant's waiver of a hearing before a board of officers and the recommendation for his discharge under the provisions of Army Regulation 635-206, due to civil conviction. He directed that the applicant be reduced to the lowest enlisted grade and that he be issued an Undesirable Discharge Certificate. 7. On 16 April 1969, he was discharged under the provisions of Army Regulation 635-206. He was issued an Undesirable Discharge Certificate. He completed 1 year and 6 days of net active duty service that was characterized as under other than honorable conditions. He had approximately 98 days of lost time due to confinement. 8. There is no indication in his records showing he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations 9. 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 could 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. 10. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 pled guilty and was convicted by civil authorities for joyriding and was sentenced to confinement for 12 months. 2. The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case. The available records contain no indication of procedural or other errors that would have jeopardized his rights and the type of discharge that he received is not severe based on his record of service. 3. Records show the applicant was only 18 years of age at the time of his offenses. However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 4. The U.S. Army has never had a policy where a discharge was automatically upgraded. Every case is individually decided based upon its merits when an applicant requests a change in his or hers 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) AR20150005291 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005291 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1