RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060010805 


	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. Gerard W. Schwartz

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, upgrade of his undesirable discharge to honorable. 

2.  The applicant states, in effect, he believes his job of 30 years for the painters union demonstrates his good character and work ethic.  He also states that the barracks commander did not like him and he requested to be transferred to another unit.  He was accused of being insubordinate, absent without leave (AWOL), failing to be at his place of duty, disposing of certain military property, and showing disrespect towards a superior.  The accusations were unfounded and were not in accordance with his good military records.  He served his country proudly for 1 year and 9 months and he only had 2-3 months left to serve.  He deserves to be proud of an honorable discharge.  

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 10 January 1966, the date of his discharge.  The application submitted in this case is dated 24 July 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 record show he was inducted into the Army of the United States Army, in pay grade, E-1, on 14 January 1964, for 24 months.  He completed basic training and was assigned military occupational specialty 17B, field artillery radar crewman.  He was advanced to pay grade E-3 on 16 September 1964.  

4.  On 12 December 1964, the applicant was convicted by a summary court-martial of showing disrespect towards a superior officer.  His sentence was confinement at hard labor for one month, forfeiture of $55.00 pay per month for one month, and reduction to pay grade E-1.  
5.  The applicant was reduced to pay grade E-1 on 12 December 1964.

6.  On 5 February 1965, the applicant was convicted by a summary court-martial of being AWOL from 12 December 1964 to 11 January 1965.  His sentence was confinement at hard labor for one month and forfeiture of $50.00 pay per month for one month.  

7.  The applicant was advanced to pay grade E-2 on 5 March 1965.

8.  On 8 July 1965, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.  His punishment included an oral admonition.

9.  On 16 September 1965, the applicant was punished under Article 15, UCMJ, for improperly disposing of military property on 14 September 1965.  His punishment included 14 days restriction and 14 days extra duty.

10.  On 21 September 1965, the applicant's commander recommended he be barred from further reenlistment.  The commander stated that the applicant lacked the ability and aptitude to perform military service as a Soldier.  The applicant required continuous supervision to perform any duties assigned to him. The applicant had demonstrated, time and time again, a complete disregard for authority and discipline.

11.  The applicant's bar to reenlistment was approved on 13 October 1965.  The approval memorandum stated that the applicant would be advised, that provided future performance and conduct warrant, the bar to reenlistment may be voided at any time.  The applicant would be closely observed and counseled accordingly.  If his character and performance of duty in the future was such as to warrant elimination from the military service, necessary action would be taken to initiate elimination proceedings under the provisions of Army Regulation 635-208 or Army Regulation 635-209, as applicable.

12.  On 22 October 1965, the applicant was punished under Article 15, UCMJ, for willfully disobeying an order.  His punishment included forfeiture of $10.00 for one month, 14 days restriction and extra duty.  

13.  On 15 November 1965, a medical examination diagnosed the applicant with an inadequate personality manifested by immaturity, poor judgment, inability to accept authority, and difficulty adapting to the military.  It was recommended the applicant be separated from the service under the provisions of Army Regulation 635-208.  
14.  On 16 November 1965, the applicant's commander recommended the applicant be discharged under the authority contained in Army Regulation 635-208.  The applicant's commander stated that repeated courts-martial had been imposed on the applicant.  The applicant's disrespect for authority was detrimental to the command structure of that unit and the Army.  

15.  On 30 November 1965, the applicant, through counsel, acknowledged the basis for action recommended under the provisions of Army Regulation 635-208. He requested a hearing before a board of officers.  He acknowledged the type of discharge he may receive as a result of that action and he understood that he might be issued an undesirable discharge under conditions other than honorable, and the results of issuance of an undesirable discharge.

16.  On 17 December 1965, the applicant appeared before a board of officers with counsel.  The board found evidence of unfitness due to the applicant's frequent incidents of a discreditable nature with civil or military authorities and an established pattern of shirking.  The board recommended the applicant be discharged for unfitness with an undesirable discharge.

17.  On 4 January 1966, the appropriate separation authority approved the applicant's discharge under the provisions of Army Regulation 635-208 and directed the issuance of an Undesirable Discharge Certificate.  

18.  The applicant was discharged, in pay grade E-1, on 10 January 1966, under the provisions of Army Regulation 635-208, for Unfitness.  He was credited with 1 year, 9 months, and 19 days net service and 79 days lost time due to AWOL and confinement.

19.  On 30 October 1981, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

20.  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 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 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.

21.  Army Regulation 635-208, then in effect, provided in pertinent part, the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  An undesirable discharge was normally issued.

22.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

23.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, they do not sufficiently support his request and do not serve as mitigation in his case. The applicant’s records show he was punished three times under Article 15, UCMJ, received two Summary Courts-Martial, and a bar to reenlistment.  The applicant's commander felt that the applicant lacked the ability and aptitude to perform military service as a Soldier.  He required continuous supervision to perform any duties assigned to him and had demonstrated, time and time again, a complete disregard for authority and discipline.

3.  The applicant requested consideration of his proposed discharge from the military by a board of officers.  A board of officers found that the applicant's frequent incidents of a discreditable nature with civil or military authorities deserved a discharge for unfitness with an undesirable discharge.  Therefore, the applicant’s misconduct thus diminished the quality of his service below that meriting a fully honorable discharge.  

4.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 30 October 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 29 October 1984.  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 timely file in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LD_____  __LB____  __TSK__  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.




      __
                CHAIRPERSON




INDEX

CASE ID
AR20060010805
SUFFIX

RECON

DATE BOARDED
20070227
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19660110
DISCHARGE AUTHORITY
AR635-208, Unfitness
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060010805


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508