RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070006779 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Laverne M. Douglas

Member

Mr. Jerome L. Pionk

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 that his undesirable discharge be upgraded to an honorable or general discharge. 

2.  The applicant states, in effect, that he got into trouble when he went out drinking one night and had to get back to base.  "A guy told me to take his car.  It was not his car and I was arrested."  He was given a general court-martial that included reduction in rank, a forfeiture of all pay, confinement at hard labor, and was to be issued a bad conduct discharge (BCD).  His BCD was overturned and he was returned to duty after one-year at confinement at hard labor.

3.  The applicant further states that after spending time in confinement he wanted out of the military.  He spoke to his commanding officer and he was told that he could not be discharged, but if he went absent without leave (AWOL) for 29 days he could be released.  The applicant went AWOL and his commanding officer put him in for the under other than honorable conditions discharge.

4.  His discharge had never been an issue until he tried to receive medical treatment from Veterans Affairs.  The applicant concludes that he has been a productive citizen since his release from the military and he now needs medical care. 

5.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the ending period 10 October 1963 and three Letters of Support.

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.


3.  The applicant enlisted in the Regular Army on 20 July 1961 and successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 112.00 (Heavy Weapons Infantryman).  

4.  On 6 August 1963, the applicant was convicted, pursuant to his pleas, by a general court-martial of operating a vehicle in a reckless manner and wrongfully appropriating a motor vehicle.  His sentence consisted of a forfeiture of $55.00 per month for nine months and confinement at hard labor for nine months.

5.  On 23 August 1963, the applicant was convicted, pursuant to his pleas, by a special court-martial of being AWOL for the period 2 July 1963 through 30 July 1963.  His sentence consisted of a forfeiture of $50.00 per month for six months and confinement at hard labor for six months.

6.  On 3 September 1963, the applicant underwent a mental evaluation by a military psychiatrist that showed the applicant demonstrated little regard for law or authority; he had a defective attitude and blames others or the military for his difficulties.  He displayed poor judgment and impulsivity.  The military psychiatrist diagnosis showed that the applicant suffered from antisocial personality and passive-aggression reaction.  The military psychiatrist determined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.

7.  On 12 September 1963, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-208 (Personnel Separations) for unfitness.  The reason cited by the commander was the applicant's misconduct.  The applicant was advised of his rights and the effect of a waiver of those rights by his company commander.  The applicant was also advised of the basis for his separation under the provisions of Army Regulation 635-208.  The applicant indicated that he declined the opportunity of requesting military counsel; that he did waive consideration of his case by a board of officers; and that he did not desire to provide a statement in his own behalf.

8.  On 26 September 1963, the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge.  He had completed 1 year, 3 months, and 25 days of creditable active service with 330 days of lost time due to AWOL and confinement.

9.  On 10 October 1963, the applicant was separated under the provisions of Army Regulation 635-208.  His DD Form 214 shows in Item 13 (Character of Service) the entry "Under Other Than Honorable Conditions."  

10.  The applicant provided three letters of support from his friends that all state that they have known the applicant for many years.  The letters state that the applicant is trustworthy, dependable and that he has never been in any type of trouble since knowing him.

11.  Army Regulation 635-208 set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  At the time, an undesirable discharge was normally issued.

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.  The applicant requests that his undesirable discharge be upgraded to an honorable or general discharge.  However, evidence shows that when he was recommended for administrative separation he declined military counsel; waived consideration by a board of officers; and that he elected not to provide a statement in his own behalf prior to his discharge from the service.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.
4.  The applicant’s post service achievements and conduct are noteworthy.  However, good post service conduct alone is not a basis for upgrading a discharge, and upon review, the applicant's good post service conduct is not sufficient to mitigate his indiscipline in the Army.

5.  The applicant's records show that he was convicted by a general court-martial and a special court-martial.  He had completed 1 year, 3 months, and 25 days of creditable active service before his separation with a total of 330 lost days due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  ___LMD_  ___JLP _   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




INDEX

CASE ID
AR20070006779
SUFFIX

RECON

DATE BOARDED
25 SEPTEMBER 2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.7900.0000
2.

3.

4.

5.

6.