RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20070000693 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Jerome Pionk

Member

Ms. Jeanette McPherson

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 after serving 2 years, 7 months, and 15 days in the Army he was discharged under other than honorable conditions.  He contends that he has been married for 43 years, that he raised three children, and that he has lived in New Jersey all his life.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 6 July 1963.  The application submitted in this case is dated 4 January 2007.

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 26 September 1960 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 764.10 (quartermaster supply).   

4.  On 20 November 1961, in accordance with his plea, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from his unit for approximately 7 hours.  He was sentenced to forfeit $40 pay per month for 1 month and restriction.  On 22 November 1961, the convening authority approved the sentence but suspended the restriction.   

5.  Between July 1961 and March 1962, nonjuducial punishment was imposed against the applicant on four occasions.

6.  On 12 April 1962, in accordance with his plea, the applicant was convicted by a special court-martial of disobeying a lawful order.  He was sentenced to be confined at hard labor for 3 months and to forfeit $55 for 6 months.  On 19 April 1962, the convening authority approved the sentence.  On 10 May 1962, so much of the sentence in excess of confinement at hard labor for 1 month and forfeiture of $55 was set aside.  

7.  On 2 May 1962, 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.

8.  On 5 July 1962, the findings and recommendations of a board of officers convened on 14 June 1962 were approved.  The applicant was retained in the service. 

9.  On 2 March 1963, nonjudicial punishment was imposed against the applicant for larceny.  His punishment consisted of a reduction to E-2, a forfeiture of pay, and restriction. 

10.  On 12 March 1963, nonjudicial punishment was imposed against the applicant for being AWOL from his unit for 4 hours.  His punishment consisted of restriction.

11.  On 3 May 1963, 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.

12.  On 6 May 1963, after consulting with counsel, the applicant waived consideration of his case by a board of officers and elected not to make a statement in his own behalf.  

13.  On 16 May 1963, nonjudicial punishment was imposed against the applicant for two specifications of failure to repair.  His punishment consisted of a reduction to E-1, restriction, and extra duty. 

14.  On 12 June 1963, the separation authority approved the recommendation for separation and directed that he be issued an undesirable discharge.   

15.  On 6 July 1963, 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, 7 months, and 15 days of creditable active service with 57 days of lost time due to AWOL and confinement.  

16.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
 
17.  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. 

18.  Army Regulation 635-200 (Enlisted Personnel Separations), 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.  

19.  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.  Good post service conduct alone is not normally a basis for upgrading a discharge.  

2.  Since the applicant’s record of service included seven nonjudicial punishments, one summary court-martial conviction, one special court-martial conviction, and 57 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.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  


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

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 6 July 1963; therefore, the time for the applicant to file a request for correction of any injustice expired on 5 July 1966.  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

JA_____  _JP____  _JM_____  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.



___James Anderholm____
          CHAIRPERSON




INDEX

CASE ID
AR20070000693
SUFFIX

RECON

DATE BOARDED
20070626
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19630706
DISCHARGE AUTHORITY
AR 635-208  
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.