RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 June 2007
	DOCKET NUMBER:  AR20070000041 


	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

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Michael Flynn

Member

Mr. Jeffrey Redmann

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. 

2.  The applicant states that he was called a German Nazi and an American Kraut.  He contends that he asked for a court-martial and never got it, that other people did worse things than he did, and that he got a “section 208.”  He also states that it was not fair and he thinks there was some discrimination on the part of his superiors.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 27 August 1964.  The application submitted in this case is dated 8 December 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 enlisted on 16 November 1961 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 622.10 (engineer equipment mechanic) and later in MOS 120.00 (pioneer).   

4.  On 23 November 1962, contrary to his plea, the applicant was convicted by a summary court-martial of assault.  He was sentenced to perform hard labor without confinement for 30 days, to forfeit $30 pay per month for one month, and to be reduced to E-2.  On 30 November 1962, the convening authority approved only so much of the sentence as provided for reduction to E-2 and forfeiture of $30 pay per month for one month.

5.  On 29 March 1963, nonjudicial punishment was imposed against the applicant for being apprehended by Military Police for being absent without leave (AWOL) and possessing another member’s pass.  His punishment consisted of a forfeiture of pay and restriction.
6.  On 28 October 1963, contrary to his pleas, the applicant was convicted by a summary court-martial of assault and disrespectful behavior toward a superior officer.  He was sentenced to be confined at hard labor for 30 days and to forfeit $50 pay per month for one month.  On 29 October 1963, the convening authority approved the sentence but suspended the confinement at hard labor for 
3 months.

7.  On 16 May 1964, in accordance with his plea, the applicant was convicted by a summary court-martial of being AWOL for 1 day.  He was sentenced to be confined at hard labor for 30 days and to forfeit $70.  On 16 May 1964, the convening authority approved the sentence.

8.  On 4 August 1964, in accordance with his plea, the applicant was convicted by a summary court-martial of being AWOL from 19 July 1964 to 2 August 1964. He was sentenced to be confined at hard labor for 30 days and to forfeit $35 pay per month for 1 month.  On 5 August 1964, the convening authority approved the sentence.

9.  On 13 July 1964, the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 
635-208 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.

10.  On 13 July 1964, after consulting with counsel, the applicant declined counsel, waived consideration of his case by a board of officers, and elected not to make a statement in his own behalf.  He also indicated that he understood he might be discharged under other than honorable conditions, that he might be ineligible for many or all benefits as a veteran under both Federal and State law, and that he might expect to encounter substantial prejudice in civilian life.  

11.  The separation authority approved the recommendation for separation and directed that he be issued an undesirable discharge.   

12.  On 27 August 1964, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 8 months, and 2 days of creditable active service with 71 days of lost time due to AWOL and confinement.  

13.  On 19 March 1965, the Army Discharge Review Board (ADRB) denied the applicant’s request for an honorable discharge. 

14.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate. 

15.  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.  

16.  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.

17.  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. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he asked for a court-martial and never got it, evidence of record shows that he was convicted for various offenses by four summary court-martials.  In addition, he waived consideration of his case by a board of officers.

2.  There is no evidence of record which shows that he was a victim of discrimination.    

3.  Since the applicant’s record of service included one nonjudicial punishment, four summary court-martial convictions, and 71 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or general discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 19 March 1965.  As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 18 March 1968.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence 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

CD_____  _MF____  _JR_____  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.



__Carmen Duncan__________
          CHAIRPERSON




INDEX

CASE ID
AR20070000041
SUFFIX

RECON

DATE BOARDED
20070607
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19640827
DISCHARGE AUTHORITY
AR 635-208  
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.