IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080000845 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be upgraded.

2.  The applicant states, in effect, that he was not given the opportunity to defend himself.

3.  The applicant provides no additional documentary evidence in support of this application.

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 complete military records are not available to the Board.  However, there were sufficient documents remaining in his record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's military record shows that he enlisted in the Regular Army on 22 July 1958.  He was trained in, awarded, and served in military occupational specialty (MOS) 111 (Light Weapons Infantry).  

4.  On 28 September 1960, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 29 September 1960, the applicant reenlisted in the Regular Army for 6 years.  

5.  The applicant's record shows he received the Army of Occupation Medal (Berlin).  

6.  The applicant's records do not show any significant acts of valor during his military service.

7.  On 19 April 1961, charges were preferred against the applicant for being disorderly in a public place on 8 April 1961, and for breaking restriction on 17 April 1961.    

8.  On 21 April 1961, the applicant pled guilty at a Summary Court-Martial at Headquarters, 2nd Battalion Group of the 6th Infantry, Berlin, German, for being disorderly in a public place on 8 April 1961, and for breaking restriction on or about 17 April 1961.  The applicant was sentenced to 15 days of hard labor, a forfeiture of $75.00 pay, and reduction to the rank of private/pay grade E-1.  

9.  Special Court-Martial Order Number 54, dated 23 October 1961, shows the applicant pled guilty to unlawfully striking a German about the face with his fist on 24 September 1961 and for breaking restriction on 10 October 1961.  The applicant was sentenced to confinement at hard labor for 4 months, and a forfeiture of $70.00 pay per month for 4 months.  

10.  The applicant's discharge packet is not available.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 9 January 1962 under the provisions of Army Regulation 635-208 (Unfitness), based on frequent incidents of a discreditable nature with civil or military authorities.  He received an undesirable discharge with his service characterized as under other than honorable conditions.  He had completed
1 year, 2 month, and 4 days of creditable service during this period of service and he had 38 days of lost time due to being in confinement.  He had also completed 2 years, 2 months and 6 days of other service.
11.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

12.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service and general aptitude.  Where a member has served faithfully and performed to the best of his or her ability, an honorable discharge certificate should be furnished.  

14.  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's contention that his discharge should be upgraded because he was not given the opportunity to defend himself was carefully considered and determined to be without merit.

2.  In the absence of evidence to the contrary, the applicant's discharge proceedings under the provisions of Army Regulation 635-208 for reason of unfitness with an undesirable discharge is presumed to have been administratively correct and in conformance with applicable regulations.

3.  The applicant's record of service included a summary court-martial, and a special court-martial for various offenses including striking another individual.  

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct renders his service unsatisfactory.  Therefore, he is not entitled to either a general discharge or an honorable discharge.

5.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

6.  The applicant has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  __X______  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.




       _    ___X____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000845



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ABCMR Record of Proceedings (cont)                                         AR20080000845



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