RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070001933 


	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. Phyllis B. Mackey

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William Blakely

Member

Mr. Donald L. Lewy

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, to have his discharge characterized as “Under Honorable Conditions” upgraded to “Honorable.” 

2.  The applicant states, in effect, that he believes his discharge should show the kind of person he has become. 

3.  The applicant provides no documentary evidence in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that occurred on 19 April 1963.  The application submitted in this case is dated 1 February 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

3.  The applicant’s military records show that he enlisted in the Regular Army for 3 years, on 11 January 1960.  After completing all required training, he was awarded the military occupational specialty (MOS) of 112.07, Heavy Weapons Infantryman.   He was later reclassified and awarded the MOS of 111.07, Light Weapons Infantryman.  

4.  The applicant’s records show that he had several periods of absence without leave (AWOL) and served two periods of confinement.  Together this lost time amounted to more than 100 days.

5.  The applicant’s records show that he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL and other misconduct on several occasions. 

6.  On 30 March 1960, the applicant was found guilty of wrongfully appropriating money, the property of another recruit.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $50.00 per month for 6 months. The sentence was adjudged and approved on 30 March 1960.

7.  On 5 April 1960 the action taken against the applicant was withdrawn, by Special Court Martial Number 12, due to the fact that it appeared the confession of the accused was not made voluntarily.  Under the circumstances of the case, the error was materially prejudicial to the substantial rights of the accused.  For this reason, the findings and sentence were disapproved and a rehearing was ordered before another court-martial to be designated.  Therefore, the Special Court-Martial Order Number 10, the order in which the original sentence had been imposed was rescinded.

8.  On 8 April 1960, the applicant was retried of wrongfully appropriating money, the property of another recruit.  The applicant was found guilty of the charge and was sentenced to confinement at hard labor for 6 months and a forfeiture of $50.00 per month for 6 months.  The sentence was adjudged and approved on 
8 April 1960.  The applicant was committed to the post stockade, Fort Benning, Georgia.   

9.  On 19 May 1960, the unexecuted portion of the applicant’s sentence to confinement was suspended until 8 October 1960, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence would be remitted without further action.

10.  On 14 January 1961, the applicant received a summary court-martial.  He was found guilty of being AWOL from 5 December 1960 to 13 December 1960.  The applicant was sentenced to reduction to Private/E-1, to a forfeiture of $55.00, per month for 1 month and to perform 45 days at hard labor without confinement. The sentence was adjudged on 14 January 1961 and approved on 16 January 1961.

11.  On 8 June 1962, the applicant was found guilty of being AWOL from 19 April 1962 until on or about 21 April 1962 and from on or about 4 May 1962 until on or about 10 May 1962.  The applicant was sentenced to confinement at hard labor for 6 months and to a forfeiture of $55.00 per month for 6 months.  The sentence was adjudged and approved on 8 June 1962.

12.  On 19 April 1963, the applicant was released from active duty on completion of his active duty service obligation (at the expiration of his term of service) in the rank and pay grade, private first class (PFC), E-3.  His service was characterized as general, under honorable conditions.  On his release from active duty, the applicant had completed 2 years, 11 months, and 29 days total active service, with 100 days of lost time.  He was transferred to the USAR Control Group (Reinforcement) to complete his Universal Military Training and Service Act service obligation.

13.  There is no evidence in the applicant’s records, and the applicant has provided no evidence, to show that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation (AR) 635-200, then in effect, provided in pertinent part, the authority for the separation of enlisted personnel upon expiration of term of service, the authority and general provisions governing the separation of enlisted personnel prior to their expiration of term of service, procedures for the implementation of laws and policies governing voluntary retirement of enlisted personnel of the Regular Army by reason of length of service, and the criteria governing the issuance of honorable, general, and undesirable discharge certificates. 

15.  AR 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant fulfilled his enlistment commitment and was released from active duty on the expiration of his term of service.  

2.  On the applicant’s release from active duty, his service was characterized as general, under honorable conditions.  This characterization of his service was based on his frequent absences without leave, other misconduct, and multiple convictions by courts-martial.  Additionally, the applicant had been subjected to other non-judicial punishment under Article 15 of the UCMJ.  The applicant’s service was deemed not to have been sufficiently acceptable to merit issuance of an honorable discharge.

3.  The applicant has provided no evidence of post-service accomplishments or conduct upon which an upgrade of his discharge can be based.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__DLL___  __WDP _  __WB___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





_____William D. Powers      _____
          CHAIRPERSON



EX

CASE ID
AR20070001933
SUFFIX

RECON

DATE BOARDED
20070816
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.