RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 March 2007
DOCKET NUMBER: AR20060012923
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.
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 his Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD).
2. The applicant states he was young and immature. He grew up in orphanages and foster homes. The military should have recognized his youth and immaturity. Since his military service, he has straightened his life out, married, raised a family, and is a grandfather.
3. The applicant provides no additional documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 12 September 1960. The application submitted in this case is dated 3 September 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 applicants failure to timely file.
3. The applicant's initial enlistment record shows he was born on 13 February 1940 and he enlisted in the Regular Army for 3 years on 30 January 1958; he was 15 days shy of his 18th birthday. There is a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) in the record showing that his mother consented to his enlistment.
4. The applicant was trained in, awarded, and served in military occupational specialty (MOS) 111.07 (Light Weapons Infantryman). He completed airborne training and was awarded the Parachutist Badge. He was assigned to Fort Bragg, NC for duty with Company C, 1st Airborne Battle Group (ABG), 504th Parachute Infantry Regiment (PIR).
5. On 30 July 1958, the applicant reenlisted for 3 years. He received a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he was honorably discharged to immediately reenlist. In December 1958, he participated in a unit permanent change of station move to Germany.
6. The applicant was court-martialed five times during his military service. On 12 November 1959, he was convicted by a special court-martial of wrongfully appropriating a 3/4-ton truck; on 28 March 1960, he was convicted by a summary court-martial of going from his place of duty without authority and wrongfully appropriating a 1/4-ton truck; on 12 April 1960, he was convicted by a summary court-martial of failure to repair, but found not guilty of failing to obey a lawful order; on 15 June 1960, he was convicted by a summary court-martial of being absent without leave (AWOL) from 0100 hours to 0400 hours, 5 June 1960; and on 13 August 1960, he was convicted by a special court-martial of being AWOL from 5-28 July 1960.
7. The administrative discharge packet is not in the applicant's record. However, the record contains a properly constituted DD Form 214, signed by the applicant, showing that he was discharged under the provisions of Army Regulation (AR) 635-208. AR 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. The regulation provided, in pertinent part, that members found to be unfit for further military service, and without rehabilitative potential, would be separated. An UD was normally considered appropriate.
8. The applicant was issued an UD on 12 September 1960. He had 2 years, 6 months, and 21 days of creditable active Federal service and 23 days of lost time for AWOL.
9. There is no record of the applicant making application to the Army Discharge Review Board for a discharge upgrade during that board's 15-year statute of limitations.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his UD was the result of his youth and immaturity. Although he was 15 days shy of his 18th birthday when his mother consented to his enlistment, he was almost 20 years old when he committed most of his acts of indiscipline. His youth and immaturity are not viewed as factors in his receipt of an UD.
2. Although the applicant may have straightened out his life, raised a family, and became a grandfather in his late 60's, this is not sufficient reason to upgrade his discharge.
3. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 September 1960; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 September 1963. 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
__klw___ __cad___ __eif___ 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.
Kenneth L. Wright
______________________
CHAIRPERSON
INDEX
CASE ID
AR20060012923
SUFFIX
RECON
DATE BOARDED
20070327
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19600912
DISCHARGE AUTHORITY
AR 635-208
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
110.0000
2.
3.
4.
5.
6.
ARMY | BCMR | CY2003 | 2003085224C070212
On the same date, the applicant's squad leader indicated in a written statement that the applicant had goofed off on most details for the past 6 months. During his prior period of enlistment, he completed 4 years, 3 months and 12 days of active military service. On 12 October 1964, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted...
ARMY | BCMR | CY2003 | 2003091011C070212
The applicant requests correction of military records as stated in the application to the Board and as restated herein. Documents associated with the applicant's discharge were not in records available to the Board. An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.
ARMY | BCMR | CY2009 | 20090006850
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. While the applicants service does not merit a fully honorable discharge, given his age and immaturity, the minor nature of his NJP offenses, and the circumstances of his 13-day period of AWOL, it would be...
ARMY | BCMR | CY2005 | 20050001251C070206
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. He served 1 year, 7 months, and 23 days in Germany. Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.
ARMY | BCMR | CY2005 | 20050001251C070206
In his acknowledgement, he requested counsel, waived a hearing before a board of officers, and did not elect to make a statement. He served 1 year, 7 months, and 23 days in Germany. Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.
ARMY | BCMR | CY2002 | 2002071344C070402
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 8 November 1960, the commander requested that the applicant go before a board of officers to determined whether the applicant should be discharged prior to expiration of his term of service under the provisions of Army Regulation 635-208 for unfitness. On 9 May 1967, the Army Discharge Review Board denied the applicant’s request for an upgrade.
ARMY | BCMR | CY2002 | 2002066487C070402
In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice. EVIDENCE OF RECORD : The...
ARMY | BCMR | CY2008 | 20080014390
Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.
ARMY | BCMR | CY2004 | 20040007316C070208
The applicant states that he was 17 when he enlisted into the service and had a hard time leaving his father. On 12 January 1961, the appropriate authority approved the recommendation for discharge due to unfitness and directed the applicant be issued an Undesirable Discharge Certificate. The applicant also accepted one NJP, was convicted by both a summary and special court-martial, was barred from reenlistment and was given a rehabilitative transfer after his release from confinement.
ARMY | BCMR | CY2004 | 2004100798C070208
The unit commander also states the applicant was good at performing those duties that he was assigned most of the time and that there appeared to be nothing wrong with him physically or mentally. The applicant may have performed assigned tasks well most of the time, even so, his personal conduct and attitude rendered both his conduct and efficiency rating unsatisfactory and he received no awards. The Board concludes that the applicant has provided no evidence to establish a basis for the...