RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070006408 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 an upgrade of his discharge.

2.  The applicant states that he served two enlistments without a break in service. He is unable to receive treatment at the Veterans Administration (VA) because the VA counts both enlistments as one time in service even though he has two separate DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provided copies of his DD Forms 214 dated 10 August 1961 and 6 November 1962.

CONSIDERATION OF EVIDENCE:

1.  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.

2.  The applicant's records show that he enlisted in the Regular Army on 3 August 1959 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 111.00 (Automatic Rifleman).

3.  The applicant's records further show that he was honorably discharged on 10 August 1961 for the purpose of immediate reenlistment.  At the time of his discharge, he had completed 2 years and 8 days of creditable service.  He reenlisted on 11 August 1961 for a period of 6 years.

4.  The applicant's DA Form 24 (Service Records) reveals multiple occasions of absence without leave as follows:  25 December 1961 to 27 December 1961; 30 December 1961 to 30 December 1961; 2 January 1962 to 3 January 1962; 4 June 1962 to 5 June 1962; 17 July 1962 to 19 July 1962; 20 July 1962 to 20 July 1962; 29 July 1962 to 30 July 1962.  Additionally, the DA Form 24 shows the applicant was confined from 21 July 1962 to 26 July 1962 and 6 August 1962 to 5 November 1962, as well as a desertion from 31 July 1962 to 5 August 1962. 

5.  The applicant's DA Form 26 (Record of Court Martial Convictions) shows that the applicant was tried by three Courts-Martial as follows:

	a.  Summary Court-Martial on 30 July 1962, for being absent without leave (AWOL) during the period on or about 24 December 1961 through on or about 28 December 1961; on or about 30 December 1961 through on or about 31 December 1961; and on or about 2 January 1962 through on or about 4 January 1962; and for violating his restriction on 30 December 1961.  He was sentenced to 30 days of hard labor without confinement, forfeiture of $43, and reduction to the grade of private/E-1.

	b.  Summary Court-Martial on 28 June 1962, for being AWOL during the period on or about 4 June 1962 through on or about 6 June 1962.  He was sentenced to forfeiture of $45 pay and reduction to the grade of private/E-2.

	c.  Special Court-Martial on 23 August 1962, for being AWOL during the period on or about 17 July 1962 through on or about 21 July 1962 and on or about 29 July 1962 through on or about 6 August 1962.  He was sentenced to confinement at hard labor for 3 months and forfeiture of $43 pay for 3 months.

6.  On 9 October 1962, the applicant's immediate commander initiated separation action against the applicant the provisions of Army Regulation 635-208 (Personnel Separations) citing his long history of indiscipline and failure to respond positively to rehabilitative measures. 

7.  On 10 October 1962, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.

8.  On 10 November 1962, the applicant underwent a mental status evaluation and was found as having no mental or physical defects noted.  There was no disqualifying mental or physical defects noted and he had the mental capacity to understand and participate in any proceedings contemplated.

9.  On an unknown date in October 1962, the applicant's intermediate commander recommended the applicant be discharged with an Undesirable Discharge. 
10.  On 30 October 1962, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-208 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate. The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This form further confirms that he completed a total of 11 months and 2 days of creditable active military service and 118 days of lost time

11.  On 14 August 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

12.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a)  frequent incidents of a discreditable nature with civil or military authorities; b)  sexual perversion; c)  drug addiction; d)  an established pattern of shirking; and/or e)  an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

13.  Army Regulation 635-200, paragraph 3-7, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his discharge.

2.  Evidence of record shows that the applicant went AWOL 7 times, was confined twice, deserted once, tried by a Summary Court-Martial twice, and tried by a Special Court-Martial once.  There is no indication of procedural errors which would tend to jeopardize his rights.  He was properly and equitably discharged in accordance with the regulations in effect at the time.  


3.  The evidence clearly shows the applicant had an extensive disciplinary record.  His quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local VA Office regarding medical and other benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __swf___  __rsv___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070006408
SUFFIX

RECON

DATE BOARDED
20071025
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19621106
DISCHARGE AUTHORITY
AR 635-208
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.