IN THE CASE OF:	    

		BOARD DATE:	         23 September 2009

		DOCKET NUMBER:    AR20080007501 


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 undesirable discharge be upgraded to a general, under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, that he was home on leave in the winter of November 1963 and there was an ice storm.  The applicant continues that he carried signed statements to his commanding officer (CO) about the ice storm from the railroad and airport managers, which his CO did not accept.  The applicant adds that at the time he did not have a chance in the world and everything from that point just went down hill.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three character reference letters 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 was inducted into the Army of the United States on 27 November 1963.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 111.00 (Light Weapons Infantryman), which was subsequently converted to MOS 11B. 

3.  The applicant's records show he received the Marksman Marksmanship Qualification Badge with Rifle Bar for qualifying with the M-14 rifle.  

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  The applicant’s record reveals a disciplinary history which shows he was convicted by Headquarters, Troop Command, Fort McPherson, GA Special Court-Martial Order Number 472, dated 17 December 1964 for being absent without leave (AWOL) during the period 29 August 1964 through 5 November 1964.  The applicant was sentenced to confinement at hard labor for 3 months, reduction to the rank of private/pay grade E-1, and forfeiture of $55.00 pay per month for 3 months.  The applicant’s sentence was adjudged on 15 December 1964 and approved on 17 December 1964.

6.  Special Court-Martial Order Number 20, same command, dated 21 January 1965, shows that the unexecuted portion of the sentence to confinement at hard labor and forfeiture promulgated in Special Court-Martial Order Number 472, dated 17 December 1964, would be suspended for a period of 2 months, at which time unless the suspension is sooner vacated, the suspended portion of the sentence would be remitted without further action.

7.  Special Court-Martial Order Number 121, dated 9 April 1965, shows that so much of the order published in Special Court-Martial Order Number 20, dated 21 January 1965, as suspends for 2 months execution of the sentence to confinement at hard labor and forfeiture and the promulgated in Special Court-Martial Order Number 472, 17 December 1964, was vacated.  The unexecuted portion of the sentence to confinement at hard labor and forfeiture would be duly executed.

8.  On 10 April 1965, charges were preferred against the applicant for being AWOL during the periods 2 February 1965 through 23 February 1965 and 17 March 1965 through 27 March 1965.    
9.  Headquarters, Troop Command, Fort McPherson Summary Court-Martial Number 27, dated 16 April 1965 shows the applicant was found guilty of being AWOL during the periods 2 February 1965 through 23 February 1965 and
17 March 1965 through 27 March 1965.  The applicant's sentence included confinement at hard labor for 30 days and forfeiture of $55.00 pay.  The applicant’s sentence was adjudged and approved on 16 April 1965.

10.  Headquarters, Troop Command, Fort McPherson Special Court-Martial Order Number 297, dated 2 August 1965 shows that the applicant was convicted of being AWOL during the period 14 June 1965 through 13 July 1965.  The applicant's sentence included confinement at hard labor for 6 months and forfeiture of $55.00 pay per month for 6 months.  The applicant’s sentence was adjudged on 28 July 1965 and approved on 2 August 1965.

11.  On 18 August 1965, the applicant was notified by his unit commander of his pending separation under the provisions of Army Regulation 635-208 (Personnel Separation) by reason of unfitness.  The unit commander essentially recommended the applicant be separated from the service as a result of his conviction by two Special Courts-Martial and a Summary Court-Martial.

12.  Further, the unit commander continued that throughout the applicant’s military service his records clearly indicated that when the Army demanded a little proficiency and devotion to duty he failed to comply and through his past records it also indicated that his performance was not consistently effective.  The unit commander added that it is his opinion that the applicant is extremely immature, and had, through his own poor self-management and repeated violations of Army Regulations, created problems which he could not cope with to a degree of average intelligent reasoning.  The unit commander in summary continued that if the applicant served his present sentence and release was imminent for return to duty, he would most likely repeat his pattern of AWOL despite his superficial charm, and a readiness to promise improvement.  Therefore, the unit commander recommended that the applicant be furnished an undesirable discharge because of unfitness.

13.  On 18 August 1965, the applicant's record shows that he consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel. 



14.  On 30 August 1965, the applicant underwent a psychiatric evaluation.  The examining psychiatrist’s findings show that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings.  

15.  The examination also shows that the applicant has no disqualifying mental defects sufficient to warrant disposition through medical channels.  The examination shows the applicant was diagnosed as having an immature personality and aggressiveness.  The evaluation recommended that the applicant be separated from the service by reason of unfitness in accordance with the provisions of Army Regulation 635-208. 

16.  On 14 September 1965, the Intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for unfitness.  He stated that the applicant terminated his formal education in the tenth grade and has little or no interest in completing high school.  The Intermediate commander continues that the applicant appears somewhat immature and insecure, offers no rational basis for his delinquent behavior and indicates that he intends to continue to be a disciplinary problem in an effort to obtain a discharge.  He further stated that the applicant is of limited potential value to the military service and therefore should be eliminated from the service under the provisions of Army Regulation 635-208.

17.  On 20 September 1965, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-208 for unfitness with an Undesirable Discharge Certificate.  

18.  On 7 October 1965, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 9 months and 9 days of creditable active military service and that he accrued a total of 392 days of time lost due to AWOL and confinement.

19.  The applicant submitted a character reference letter, dated 28 March 2008, from the Vice President of the State Bank & Trust, Brilliant, Alabama.  The letter states that the applicant has had a business relationship with the bank for more than thirty years.  The letter continues that the applicant handles all his financial matters in a prompt manner, is pleasant and friendly, and is a hardworking individual who is dedicated to his family and community.  

20.  The applicant submitted a character reference letter, dated 28 March 2008, from the Mayor of the Town of Brilliant, Alabama.  The mayor states that he has known the applicant for 40 years and considers him an outstanding citizen who is always willing to help anyway he can.  
21.  The applicant submitted a character reference letter, dated 28 March 2008, from his pastor in Winfield, Alabama.  The pastor states that he founded and is the senior pastor of the church of The Shepherd's Field, Inc, in Winfield, Alabama.  The pastor continues that he has known the applicant for forty years.  The pastor adds that the applicant had passed through the transition of "growing up" and made some choices that he probably would go back and do differently.  The pastor continues that he has more confidence and trust in the applicant now that he is an adult.  The pastor continues that the applicant is a good husband, good father, participates in physical activities, a very consistent leader of his household, and a kind citizen and neighbor that people are happy to have in the community.

22.  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.

23.  Army Regulation 635-208 (Personnel Separation), in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service. The regulation provided, in pertinent part, that members who displayed undesirable habits and traits were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

24.  Army Regulation 635-200, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

25.  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.

26.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.  

2.  The applicant's separation processing was accomplished in accordance with the applicable regulation in effect at the time, all requirements of law and regulation were met, the rights of the applicant were fully protected throughout the discharge process, and his discharge accurately reflects his overall record of undistinguished service.

3.  The applicant's record reveals an extensive disciplinary history that included conviction by two Special Courts-Martial and a Summary Court-Martial for multiple offenses.

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.  The applicant's repeated instances of misconduct also render his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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.

7.  The applicant’s letters of support were carefully reviewed and considered; however, these letters are not sufficiently mitigating to warrant an upgrade in this case.

8.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Department of Veterans Affairs (VA) benefits.

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)                                         AR20080007501



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ABCMR Record of Proceedings (cont)                                         AR20080007501



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