IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080009705 


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 his conduct and minor offenses did not warrant the type of discharge he was furnished.

3.  The applicant provides an undated self-authored statement in support of his 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's records show he enlisted in the Regular Army for a period of 3 years on 13 July 1962.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 910.0 (Medical Corpsman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records further show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant achievements or acts of distinction during his military service.

4.  On 18 February 1963, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 17 February 1963 through on or about 18 February 1963.  His punishment consisted of 5 days of restriction and 6 days of extra duty. 

5.  On 1 May 1963, the applicant pled not guilty at a Special Court-Martial to the charge and specification of recklessly operating a military vehicle, thereby causing an accident; and to the charge and specification of wrongfully and unlawfully leaving the scene of an accident without making his identity known, on or about 16 April 1963.  He also pled guilty to the charge and specification of failing to obey an order, on or about 16 April 1963.  The Court found him guilty of all charges and specifications and sentenced him to reduction to PV2/E-2, hard labor without confinement for 30 days, and a forfeiture of $30.00 pay per month for 3 months.  The sentence was adjudged on 1 May 1963 and approved on 
8 May 1963.

6.  On 3 May 1963, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his unit without authority on or about 1 May 1963.  His punishment consisted of 10 days of restriction.

7.  On 8 May 1963, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for breaking restriction, on or about 7 May 1963.  His punishment consisted of a forfeiture of $11.00 pay, 14 days of restriction, and 14 days of extra duty.

8.  On 8 May 1963, the applicant's immediate commander initiated a Certificate of Unsuitability for Reenlistment (now known as a Bar to Reenlistment Certificate) citing his continued pattern of misconduct.  The applicant was furnished a copy of this Certificate on 8 May 1963, but elected not make a statement.  The Certificate was subsequently approved by the approval authority on the same date.
9.  On 21 May 1963, the applicant pled guilty at a Summary Court-Martial to the charge and specification of being AWOL during the period on or about 16 May 1963 through on or about 18 May 1963.  The Court found him guilty of the charge and specification and sentenced him to hard labor without confinement for 45 days, and a forfeiture of $30.00 pay for 1 month.  The sentence was adjudged on 24 May 1963 and approved on 25 May 1963.

10.  On 1 June 1963, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty (hard labor detail) and being found drunk on duty and incapable of performing his duties.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

11.  On 3 June 1963, the applicant’s immediate commander notified the applicant to appear before a board of officers to determine whether he should be eliminated from the service under the provisions of Army Regulation 635-208 (Personnel Separations).  

12.  On 3 June 1963, the applicant was counseled by his company or a comparable unit commander and acknowledged the notification of his appearance before a board of officers.  He further indicated he was advised of the basis of the recommendation for elimination, was furnished a copy of the immediate commander's report and copies of statements to support the recommendation for his discharge.  He was also advised of his right to consult legal counsel in the office of the Staff Judge Advocate prior to making his decision, but declined to do so; waived hearing before a board of officers, and submitted a statement on his behalf.

13.  On an unknown date in July 1963, the separation authority approved the applicant's elimination from the Army for unsuitability, under the provision of Army Regulation 635-208 and directed he be furnished an Undesirable Discharge Certificate.  On 22 July 1963, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged for unfitness, in accordance with Army Regulation 635-208 with a character of service of under other than honorable conditions.  This form further shows he completed 1 year and 10 days of creditable active military service.

14.  In his undated self-authored statement, the applicant states that he was young at the time he joined the Army and did not know much about the military or life in general.  He started drinking when he was in Germany and got in trouble for drinking, missing bed-check, and at one time, for driving an Army Jeep.  He neither hurt anyone nor committed any crimes other than breaking some of the Army rules.  He is now older and more mature, and in need of medical attention 

15.  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.

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

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.  The applicant contends that his discharge should be upgraded.

2.  The applicant's contention that his offenses were minor and his current medical needs are noted.  However, the applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  The Board 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 multiple instances of Article 15s, two instances of AWOL, a bar to reenlistment, a Special Court-Martial, a Summary Court-Martial, and two instances of 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 a general or 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)                                         AR20080009705



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ABCMR Record of Proceedings (cont)                                         AR20080009705



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