IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008

	DOCKET NUMBER:  AR20080008404 


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 an upgrade of his discharge.

2.  The applicant states that it has been 42 years since his discharge and that he has been a loyal and good civil servant since then.  He further adds that during his military service, he was associated with the Army Boxing Team and the Special Forces.  He also states that he has been working in security for three and a half years and would like his discharge upgraded to further his career.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 10 February 1966. 

	b.  Certificate, dated 11 August 1988, showing the grant of an Associate of General Studies Degree.

	c.  Letter, dated 18 January 2008, Eligibility for Registration as a Security Guard.

	d.  Department of Veterans Affairs Card and Unarmed Security Guard Card.  

	e.  DD Form 293 (Application for Review of Discharge From the Armed Forces of the United States), dated 23 April 2008.
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 records show he enlisted in the Regular Army for a period of 3 years on 29 March 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12C (Bridge Specialist).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4 (Temporary).  

3.  The applicant's records further show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record does not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 27 June 1963, for being absent without leave (AWOL) during the period on or about 21 June 1963 through on or about 24 June 1963.  His punishment consisted of an oral reprimand, a forfeiture of $18.00 pay for 
1 month, 14 days of extra duty, and 7 days of correctional custody.

	b.  on 30 October 1964, for being derelict in the performance of his duty by placing himself in the cab of a 2.5-Ton Truck, a position whereby he could not see all the ammunition and equipment he was guarding.  His punishment consisted of reduction to private first class (PFC)/E-3, 14 days of restriction (suspended for 90 days), and 14 days of extra duty (suspended for 90 days).  The applicant appealed his punishment on 30 October 1964; however, his appeal was denied on 12 November 1964. 


5.  On 11 August 1965, the applicant pled guilty at a Special Court-Martial to one specification of absenting himself from his unit, on or about 1 July 1965; one specification of violating a lawful general regulation by operating his privately owned vehicle (POV) without a valid drivers permit and without valid license plates, on or about 1 July 1965; one specification of making a false statement with intent to deceive, on or about 1 July 1965; and one specification of being disorderly in the command, on or about 1 July 1965.  The Court sentenced him to reduction to PV2/E-2 and a forfeiture of $82.00 pay for 4 months.  The sentence was adjudged on 11 August 1965 and approved on 13 August 1965.

6.  On 8 October 1965, the applicant pled not guilty at a Summary Court-Martial to the charge and specification of leaving his appointed place of duty without authority, on or about 2 September 1965, and the charge and specification of being drunk in uniform in a public place, on or about 2 September 1965.  He also pled guilty to the charge and specification of violating a lawful general regulation by appearing in a public place in a work uniform, on or about 2 September 1965. The Court found him guilty of all charges and specifications and sentenced him to 30 days of confinement at hard labor, a forfeiture of $75.00 pay for 1 month, and reduction to the lowest enlisted grade.  The sentence was adjudged and approved on 8 October 1965. 

7.  On 31 October 1965, Headquarters, 11th Engineer Group, published Special Court-Martial Order Number 19, remitting the unexecuted portion of the applicant’s sentence to confinement at hard labor for 30 days.

8.  On 28 September 1965, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant, citing his continuous acts of indiscipline and unsatisfactory performance and efficiency.  However, a copy of this Bar to Reenlistment Certificate is not available for review with this case. 

9.  On 29 September 1965, the applicant’s immediate commander recommended the applicant be eliminated from the Army under the provisions of Army Regulation 635-208 (Personnel Separations), citing the applicant’s record of disciplinary problems.  The immediate commander remarked that the applicant “must be eliminated from service” and “nothing indicates that this man will change his unsatisfactory conduct in any manner except to make his record and the amount of time the Army spends on him worse.”  The immediate commander recommended an Undesirable Discharge Certificate.  

10.  On 4 October 1965, the applicant consulted with counsel and acknowledged notification of his pending separation action.  He further indicated he understood that if an undesirable discharge was issued to him, that such discharge would be under conditions other than honorable; that as a result of such discharge he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He requested a hearing by a board of officers and desired to submit statements on his own behalf.

11.  On 8 October 1965, the applicant departed his unit in an AWOL status.  Although his records do not indicate whether he surrendered or was apprehended; his records show that he returned to military control on 30 October 1965.

12.  On 9 November 1965, the applicant’s senior commander recommended the applicant be eliminated from military service under the provisions of Army Regulation 635-208.  He further recommended a Board of Officers convene to consider the applicant’s elimination.

13.  On 23 November 1965, a Board of Officers was appointed for the purpose of consideration of a recommendation for the applicant’s elimination.  The applicant was accordingly notified, and on 6 December 1965, he acknowledged notification of this appointment.

14.  On 7 December 1965, by memorandum, the applicant was notified of the time, date, location, composition, uniform, and purpose of the Board of Officers.  He was also notified of his right to consult with counsel and present witnesses. 

15.  On 10 December 1965, the applicant acknowledged receipt of the notification to appear before the Board of Officers and his rights to present evidence or witnesses during the board.  He further stated that an officer had already been appointed as his counsel 

16.  The Board convened in the Conference Room of Headquarters, 11th Engineer Group, Germany, at 9:44 am on 13 December 1965, with the applicant and his counsel present throughout the duration of the Board, and was afforded full opportunity to cross-examine adverse witnesses to present evidence in his own behalf and to testify in person or submit a statement.  The Board adjourned at 12:00 pm on 13 December 1965.

17.  The Board found that the allegation of unfitness was supported by a preponderance of the evidence and warranted the applicant’s elimination.  The Board reached a unanimous decision to recommend the applicant’s discharge from the Army with an Undesirable Discharge Certificate.  The Board president authenticated the report of proceedings as completed and accurate.  


18.  On 27 December 1965, the separation authority approved the findings and recommendations of the elimination proceedings, except he ordered the applicant be furnished a General Discharge Certificate.  On 10 February 1966, the applicant was accordingly discharged.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged for unfitness, in accordance with Army Regulation 635-208 with a character of service of under honorable conditions.  This form further shows he completed 2 years, 9 months, and 17 days of creditable active military service and had 26 days of lost time due to AWOL.

19.  On 19 June 1979, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

20.  Army Regulation 635-208 (Personnel Separations) (later superseded by Army Regulation 635-200), in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

21.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's prior association with the Army Boxing Team, his post-service work history and academic achievements, and his ambition in having a career in security are all noted.  However, the applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were improper or inequitable.

3.  The evidence of records shows that the applicant's discharge was in accordance with applicable regulation and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's records reveal a disciplinary history which includes two instances of Article 15s, two instances of AWOL, a bar to reenlistment, a Special Court-Martial, a Summary Court-Martial, and one instance of confinement at hard labor.  Based on his extensive record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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 _   _______   ______________
       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)                                         AR20080008404



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ABCMR Record of Proceedings (cont)                                         AR20080008404



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