RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080001169 


	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.

2.  The applicant states, in effect, that he has led a productive and meaningful life for the past 40 years.  He contends that he raised two sons and three daughters, that he maintained employment through the years until he developed a number of health problems and was disabled in 1997, and that he is a model citizen with no felonies.

3.  The applicant provides three character reference letters.

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 enlisted on 13 October 1961 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 760.00 (supply clerk) and later in MOS 111.00 (light weapons infantryman).      

3.  Between 10 April 1962 and 29 October 1962, nonjudicial punishment was imposed against the applicant on four occasions for being absent without leave (AWOL), failure to obey a lawful order, breaking restriction, and curfew violation. 

4.  On 5 December 1962, the applicant was convicted by a summary court-martial of being AWOL (approximately 19 hours) and assault.  He was sentenced to be restricted to the limits of the Army airfield (Germany) for a period of 
30 days.  On 6 December 1962, the convening authority approved the sentence. 

5.  On 7 January 1963, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of restriction. 

6.  On 18 April 1963, a bar to reenlistment was imposed against the applicant.

7.  On 10 May 1963, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and being incapacitated for duty as a result of previous indulgence in intoxicating liquor.  His punishment consisted of a forfeiture of pay and restriction.

8.  On 10 May 1963, the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-208 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.

9.  On 13 May 1963, after consulting with counsel, the applicant waived consideration of his case by a board of officers and elected not to make a statement in his own behalf.    

10.  On 12 June 1963, the applicant was convicted by a summary court-martial of assault and breaking restriction.  He was sentenced to be restricted to the limits of the barracks (Germany) for a period of 30 days and to forfeit $25 pay per month for one month.  On 17 June 1963, the convening authority approved the sentence. 

11.  On 18 June 1963, the separation authority approved the recommendation for separation and directed that he be issued an undesirable discharge.   

12.  On 15 July 1963, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served a total of 1 year, 9 months, and 3 days of creditable active service.  

13.  In support of his claim, the applicant provided three character reference letters from a police officer, a licensed psychologist, and his pastor.  They attest that he is a good citizen, a trusted employee, a respected neighbor, and his psychologist indicated that he did not appear to be a threat to anyone.  

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

15.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate. 

16.  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.  

17.  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.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The character reference letter and letters of recommendation submitted on behalf of the applicant fail to show that his 1963 discharge was unjust and should be upgraded.

3.  Since the applicant’s record of service included a bar to reenlistment, six nonjudicial punishments, and two summary court-martial convictions, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

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



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM_____  __CD___  __QS____  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.


      __             _JM      ____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001169


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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