RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080001162 


	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 discharge be upgraded.  He also requests a personal hearing in Dallas, TX.

2.  The applicant states that he was too young to understand the importance of a discharge.  He is 65 now and wishes he could go back and do it over.  He is sorry for his mistakes.  

3.  The applicant provides no additional evidence.

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 was born on 18 August 1941.  He enlisted in the Regular Army on 22 May 1959.  He completed basic training and advanced individual training and was awarded military occupational specialty 120.00 (Pioneer).

3.  On 1 May 1960, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for fighting in the barracks.

4.  On 9 July 1960, the applicant was convicted by a summary court-martial for attempting to steal a wallet and for failing to go to his appointed place of duty.  He was sentenced to be reduced to Private, E-2, to forfeit $50.00 pay, and to restriction for 30 days.

5.  On 1 January 1961, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being disorderly in quarters.

6.  On 24 February 1961, the applicant was convicted by a summary court-martial for unlawfully striking another Soldier in the stomach with his fist.  He was sentenced to be confined at hard labor for 30 days and to forfeit $50.00.
7.  On 8 March 1961, the applicant’s commander recommended he be separated under the provisions of Army Regulation 635-208 for unfitness.

8.  On 9 March 1961, the applicant, after being counseled and advised of the basis for the separation action, waived his right to appear before a board of officers and elected not to submit a statement in his own behalf.

9.  On 28 March 1961, the applicant was convicted by a summary court-martial for being disrespectful in language toward his superior noncommissioned officer. He was sentenced to forfeit $60.00 pay and to perform hard labor for 30 days.

10.  On 10 April 1961, the appropriate authority approved the recommendation to separate the applicant and ordered he be issued an Undesirable Discharge Certificate.

11.  On 21 April 1961, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208 for unfitness, with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 1 year and 11 months of creditable active service with no lost time. 

12.  There is no evidence of record to show that applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

13.  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 of 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.

14.  Army Regulation 635-200 is the current regulation that governs the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  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.

16.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant was only 17 years old when he enlisted.  However, he had been in the Army for almost a full year before his misconduct began.  He should have known what the Army’s standards of conduct were by that time, and after his first two summary courts-martial and records of nonjudicial punishment he should have known that there would be consequences for his continued misconduct.  

2.  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.  Considering his record of service, the characterization of his discharge as under other than honorable conditions was and still is appropriate.

3.  The applicant’s case is not so complicated as to require a formal hearing.  (In addition, the ABCMR, unlike the ADRB, does not have a traveling panel of members).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __cad___  __qas___  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.




      ___             JTM       ____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001162


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