RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2006
	DOCKET NUMBER:  AR20060007768 


	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.



Director


Analyst

The following members, a quorum, were present:



Chairperson


Member


Member

	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, in effect, that his undesirable discharge be upgraded to an honorable discharge. 

2.  The applicant essentially states that when he reported to his commanding officer at Fort Polk, Louisiana, he was informed that he was going to be released from active duty under a hardship discharge, and that his military record would read that he received an honorable discharge. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 11 May 1965, the date of his discharge from the Regular Army.  The application submitted in this case is dated 11 May 2006.

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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show that he enlisted in the Regular Army on 
6 July 1954.  After reporting to Fort Ord, California for basic training, he was reassigned several times with the same organization.    

4.  On 5 March 1965, the applicant was convicted by a special court-martial (SPCM) for being absent without leave (AWOL) from on or about 3 January 1965 and remaining AWOL until on or about 31 January 1965.  His punishment consisted of reduction in rank from private/pay grade E-2 to private/pay grade 
E-1, confinement at hard labor for 1 month, and forfeiture of $55.00 for 1 month.  The execution of that portion thereof adjudging confinement at hard labor for 1 month was suspended for 1 month, at which time, unless the suspension was sooner vacated, would be remitted without further action.

5.  Evidence of records show on or about 22 March 1965, the applicant was reassigned from Fort Ord, California to Fort Polk, Louisiana to complete basic training.

6.  Between 25 March 1965 and 6 April 1965, the applicant accepted nonjudicial punishments (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for essentially altering an Individual Sick Slip, which was an official document, with the words “Rest remainder of day,” and for failing to obey a lawful order.  Collectively, his punishment consisted of forfeiture of $30.00 pay, and restriction for 60 days.

7.  Although the complete paperwork for the applicant’s discharge is not present in his military records, on 3 May 1965, the Commanding General, Fort Polk, Louisiana, who was the proper approval authority, approved the applicant’s elimination from the Service.  He directed that the applicant receive a DD Form 258A (Undesirable Discharge Certificate), and that the authority for his discharge was Army Regulation 635-208, for unfitness.

8.  There is no evidence in the applicant’s military records that shows that he was considered for a hardship discharge or an honorable discharge at any time. 

9.  There is no evidence to show that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within the 15-year statute of limitations. 

10.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.




12.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge. 

2.  While the Board does not doubt the veracity of the applicant’s claim that his commanding officer told him that he was going to be released from active duty under a hardship discharge, and that his military record would read that he received an honorable discharge, there is no evidence in his military records to corroborate his claim.   

3.  Although the complete paperwork surrounding his elimination was not present in his military records, it is clear that the applicant was properly approved for elimination from the Service, and that he was to receive an undesirable discharge.  As the applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows that was convicted by an SPCM, and accepted NJP under Article 15 of the UCMJ on at least two occasions.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 May 1965; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
10 May 1968.  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 timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MM __  ___JM __  ___QS__  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.




_____ Mark Manning_______
          CHAIRPERSON




INDEX

CASE ID
AR20060007768
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19650511
DISCHARGE AUTHORITY
AR 635-208 
DISCHARGE REASON
UNFITNESS - FREQUENT INVOLVEMENT IN INCIDENTS OF A DISCREDTIBLE NATURE WITH CIVIL OR MILITARY AUTHORITIES
BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.6400.0000
2.

3.

4.

5.

6.