IN THE CASE OF:	

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080008919 


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 general discharge, under honorable conditions, be upgraded to a honorable discharge. 

2.  The applicant states, in effect, that he was court-martialed and discharged after following direct orders from a non-commissioned officer (NCO).  He also states that he was ordered to drive the trash truck for the trash detail.  He advised the NCO that he was on guard mount and he could not do both.  He was ordered to drive the trash detail and he missed guard duty. 

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 8 March 1960, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 131, Armor Crewman.  He was promoted to pay grade E-3 on 5 December 1960.

3.  On 8 October 1962, a Charge Sheet (DA Form 458) was prepared by the Commander, Headquarters Troop, 2nd Reconnaissance Squadron, 15th Cavalry, 4th Armored Division, APO 696, US Forces.  The applicant was charged with one specification of sleeping on his sentinel post on 26 September 1962.  He was convicted by summary court-martial and sentenced to confinement at hard labor for 30 days and a forfeiture of $75.00 pay per month for 1 month.

4.  On 6 November 1962, the Commander, Headquarters, 2nd Reconnaissance Squadron, 15th Cavalry, 4th Armored Division, approved so much of the sentence as provided for a forfeiture of $70.00 pay and suspended that portion of the sentenced that provided for confinement at hard labor for 30 days.

5.  On 9 November 1962, a Charge Sheet (DA Form 458) was prepared by the Commander, Headquarters Troop, 2nd Reconnaissance Squadron, 15th Cavalry, 4th Armored Division.  The applicant was charged with one specification of absenting himself from his unit from 0100 to 0315 hours on 28 October 1962.  He was convicted by a summary court-martial and sentenced to perform hard labor without confinement for 14 days and a forfeiture of $50.00 pay per month for one month.  The sentence was approved and ordered executed on 14 November 1962.

6.  A Report of Psychiatric Evaluation, dated 14 November 1962, found that the applicant was mentally responsible, able to distinguished right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings, and that he had no mental disease or defect sufficient to warrant disposition through medical channels.  The evaluator, an Army medical doctor, recommended the applicant be separated from the service under the provisions of Army Regulation 635-209, paragraph 3c, for unsuitability due to apathy.

7.  On 15 November 1962, a Charge Sheet (DA Form 458) was prepared by the Commander, Headquarters Troop, 2nd Reconnaissance Squadron, 15th Cavalry, 4th Armored Division.  The applicant was charged with one specification of leaving his appointed place of duty on 9 November 1962.  He was convicted by summary court-martial and sentenced to confinement at hard labor for 30 days and a forfeiture of $70.00 pay per month for one month.  The sentence was approved and ordered executed on 26 November 1962.

8.  On 14 January 1963, the applicant's commander recommended the applicant be discharged because of unsuitability under the provisions of Army Regulation 635-209.  The commander stated that numerous attempts had been made to rehabilitate the applicant and all had met with failure.  In September, the applicant was given punishment under Article 15, Uniform Code of Military justice, for violation of Article 86.  In September 1962, the applicant was convicted of sleeping while posted as a sentinel and in October and November 1962, he was convicted in violation of Article 86. 

9.  On 14 January 1963, after consulting with counsel, the applicant acknowledged receipt of a proposed recommendation for his discharge.  He elected not to have his case heard before a board of officers, elected not to submit a statement in his own behalf, and acknowledged that he understood the effects of being issued a general discharge.

10.  On 15 January 1963, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-209, and directed the issuance of a General Discharge Certificate.  

11.  The applicant was discharged, in pay grade E-1, on 4 February 1963, under the provisions of Army Regulation 635-209.  The applicant's DD Form 214 had a Separation Program Number of 46A (unsuitability – apathy, defective attitudes, and inability to expend effort constructively), PETS (Prior to Expiration Term of Service).  He was issued a general discharge.  He was credited with 2 years, 10 months, and 3 days total active service.  

12.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-209, in effect at the time, established the policy and provided procedures and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service due to inaptitude, character and behavior disorders, apathy, enuresis, alcoholism, and homosexuality.  An individual would normally be issued an honorable or a general discharge, as warranted by the individual's military record.

14.  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, 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, it is apparent that the applicant's discharge was based on his overall performance during his period of service from 8 March 1960 to 4 February 1963.  The evidence of record shows the applicant was convicted by summary courts-martial of sleeping while posted on sentinel, absenting himself from his unit, and leaving his appointed place of duty.  The applicant's commander stated that numerous attempts had been made to rehabilitate the applicant and all had met with failure.  

3.  The applicant has provided insufficient evidence to show that his discharge was unjust or that he deserves an honorable discharge now.  He also has not provided evidence sufficient to mitigate the character of his discharge.  In the absence of evidence to the contrary, the character of the discharge is commensurate with his overall record of military service. 

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general discharge.

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)                                         AR20080008919



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ABCMR Record of Proceedings (cont)                                         AR20080008919


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