RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080001156 


	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, in effect, that his undesirable discharge be upgraded to an honorable or a general discharge.

2.  The applicant states that the word "not" is excluded from his Report of Transfer or Discharge (DD Form 214) which is detrimental to its meaning.  He states that his original discharge read "not other than honorable."  He states that the exclusion changes its meaning dramatically.  He states that at the time of his discharge, he was so confused regarding the meaning of his discharge that he went to personnel to have it verified.  He states that he was sent back to the doctor who issued him his discharge and it was explained to him that he was receiving a "general discharge not under other than honorable conditions."  He states that his discharge was for medical reasons as he committed no crimes for which he should be ashamed.

3.  The applicant provides in support of his application, a letter addressed to him, from the Review Boards Agency, Support Division, dated 17 December 2007, explaining to him that his DD Form 293 could not be processed and that he may request an appeal of his discharge by applying to this Board; a Department of Veterans Affairs Statement in Support of Claim, dated 14 December 2007; a letter from the North Carolina Department of Administration, addressed to this agency, dated 27 December 2007, which was used to forward his application and supporting documents; and a copy of his DD Form 214.

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 24 February 1965, the applicant enlisted in the Army in Newark, New Jersey, for 3 years, in the pay grade of E-1.  He successfully completed his training as a medical specialist.

3.  The applicant was promoted to the pay grade of E-2 on 24 February 1965; he was promoted to the pay grade of E-3 on 9 November 1965; and the he was promoted to the pay grade of E-4 on 20 October 1966.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 22 December 1966, for leaving two seriously ill patients unattended on Ward 2A and for sleeping in the soiled linen room on Ward 2A while on duty.  His punishment consisted of a reduction to the pay grade of E-3.

5.  On 10 February 1967, NJP was imposed against him for sleeping while on duty.  His punishment consisted of an oral reprimand and restriction for 21 days.

6.  On 29 March 1967, NJP was imposed against the applicant for drinking beer while playing cards in the billets in the company of other enlisted personnel in violation of post regulations and the company commander's written company regulation.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $30.00 per month for 2 months, and restriction to the company post for 21 days.  So much of the punishment as pertains to his reduction to the pay grade of E-2 was suspended for a period of 90 days, unless sooner rescinded or vacated by the proper authority.

7.  On 9 May 1967, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 21 April 1967 until 24 April 1967, and from 1 May 1967 until 3 May 1967.  He was sentenced to a reduction to the pay grade of E-1; a forfeiture of pay in the amount of $20.00; and restriction to the limits of the duty section, medical company billets, the mess hall, and the post chapel for 30 days.

8.  On 15 May 1967, the applicant was notified that he was being recommended for separation from the Army under the provisions of Army Regulation 635-212, for unfitness.  His commander cited "frequent incidents of a discreditable nature with the military, frequent conflicts with authority, and habitual shirking" as a basis for the recommendation for discharge.  His commander noted that despite numerous attempts at counseling the applicant, his attitude and effectiveness had not improved, and that he had what had been described by a psychiatrist as a bi-social personality.  However, a review of the available record fails to reveal the mental status evaluation.

9.  The applicant acknowledged receipt of the recommendation for discharge on 5 June 1967.  After consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf.  

10.  The appropriate authority approved the recommendation for discharge on 13 June 1967 and he recommended the issuance of an Undesirable Discharge Certificate.  Accordingly, on 15 June 1967, the applicant was discharged under the provisions of Army Regulation 635-212, paragraph 6a(1), for unfitness, based on frequent incidents of a discreditable nature with civil or military authorities.  He had completed 2 years, 3 months, and 17 days of total active service and he was furnished an Undesirable Discharge Certificate.

11.  A review of the available record fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted and his supporting documents have been reviewed.  However, his contentions are unsupported by the evidence of record.  The evidence of record shows that he was discharged for frequent incidents of a discreditable nature with military authorities.  He had NJP imposed against him on three separate occasions and he was convicted by a special court-martial as a result of his acts of indiscipline.  There is no evidence in the available record, nor has the applicant submitted any evidence to support his contention that he believed that he was receiving a general discharge or that he was told by anyone he was receiving a general discharge. 


4.  Additionally, there is no such type of discharge as a "general discharge under not other than honorable conditions."

5.  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 has failed to submit evidence that would satisfy this 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 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)                                         AR20080001156



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