RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070017762 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 general under honorable conditions.

2.  The applicant states, in effect, that he served honorably in the United States Army from 28 August 1958 to 10 April 1960.  He reenlisted on 11 April 1960 and soon after met a girl who got him involved with drugs, took his money, and then left him.  He turned himself in at Fort Bragg, North Carolina and had hoped he could go back to being a Soldier.  Since that time he has been married for 
40 years, raised two children and a grandchild.  He is the pastor with the Christ Biker’s Ministry. 

3.  The applicant provides copies of his two Armed Forces of the United States Reports of Transfer or Discharge (DD Forms 214) and three letters of support from his spouse, pastor, and a friend.

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.  On 28 August 1958, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  

3.  On 9 December 1958, the applicant was assigned for duty as an automatic rifleman at Fort Lewis, Washington.

4.  On 2 July 1959, the applicant was convicted by special court-martial of being absent without leave (AWOL) for 29 days.  His sentence consisted of hard labor without confinement for 30 days, forfeiture of $50.00 pay per month for 3 months, and reduction to pay grade E-1.
5.  On 29 February 1960, the applicant was promoted to private first class, pay grade E-3.

6.  On 22 June 1960, the applicant was convicted by summary court-martial of AWOL for 7 days.  His sentence consisted of forfeiture of $50.00 pay per month for 1 month, reduction to pay grade E-2, and restriction for 14 days.

7.  On 7 July 1960, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for 1 day AWOL.  The punishment included extra duty for 14 days.

8.  On 20 August 1960, the applicant was convicted by special court-martial of AWOL for 2 days, missing reveille formation, disobeying a lawful order, and for being disrespectful in language toward his superior noncommissioned officer.  His sentence consisted of confinement at hard labor for 4 months, reduction to pay grade E-1, and forfeiture of $35.00 pay per month for 4 months.  He served 
123 days in confinement.

9.  On 29 December 1960, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failure to repair.  The punishment included extra duty for 
14 days.

10.  On 6 February 1961, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-208 for unfitness.  The commander stated that the applicant's conduct was characterized by frequent incidents of a discreditable nature. He was unable to adapt himself to military life and was always into some kind of trouble with his superiors.

11.  On 9 February 1961, the applicant was examined by a psychiatrist and was found to be an emotionally unstable and somewhat depressed Soldier who came from a background where his father would frequently beat him.  The psychiatrist diagnosed the applicant with having an emotional instability reaction and a passive-aggressive reaction and recommended him for an administrative discharge. 

12.  On 10 February 1961, the applicant received legal counseling and elected to submit a statement in his own behalf.  There is no statement available for review.




13.  On 3 March 1961, the applicant was convicted by special court-martial of disobeying a lawful order from his superior noncommissioned officer and for failure to repair.  His sentence consisted of confinement at hard labor for 
6 months, forfeiture of $70.00 pay per month for 6 months, and reduction to pay grade E-1. He served 76 days in confinement.

14.  On 11 April 1961, a board of officers convened under the provisions of Army Regulation 635-208, to consider the applicant’s frequent incidents of discreditable nature with military authorities.  The applicant and his counsel were present.  The board found the applicant unfit due to frequent incidents of discreditable nature with military authorities and recommended that he be discharged with an Undesirable Discharge Certificate.  

15.  On 11 April 1961, the appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  On 28 April 1961, the applicant was discharged accordingly.  He had completed 2 years, 
7 months, and 28 days of creditable active service, and had 206 days of lost time due to AWOL and confinement.

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

17.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provides that: "the setting of arbitrary standards, such a certain number of trials by courts-martial, as a prerequisite to administrative elimination as a test of 'effective rehabilitation' violates the concept of individual evaluation."  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

18.  The letters of support provided by the applicant state, in effect, that he has been a good and loving husband, father, and grandfather, who has worked with senior citizens in his church and has given of himself to help the less fortunate.  He has served his community in a variety of ways and is the founder of the Gaston County Toy Run for Kids.
  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant received three special courts-martial, one summary court-martial, and two nonjudicial punishments during a period of about 20 months.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  There is no evidence of record, nor has the applicant provided sufficient evidence to support upgrade of his discharge. 

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. Therefore, his undesirable discharge should not be upgraded.

4.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated and excessive acts of indiscipline during his military service.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






      __________X____________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070017762



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508