IN THE CASE OF:	  

		BOARD DATE:	       19 August 2008

		DOCKET NUMBER:  AR20080009932 


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 that his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states he was informed at the time that after ten years he could petition the military to correct his records.  He believes his discharge should be upgraded because he completed almost all of his term, which was more time than a draftee completed.  He was very young at the time.  He has lived with the shame and embarrassment of this all these years.  He has great pride in the military and has two grandsons serving in the Army now.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and a letter, dated 10 September 2003, from the National Personnel Records Center.

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 born on 28 June 1941.  He enlisted in the Regular Army on 1 May 1963 for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 631.10 (Wheel Vehicle Mechanic).

3.  On 16 March 1964, the applicant accepted non-judicial punishment (NJP) under Article 15, UCMJ, for failing to go to his appointed place of duty.

4.  On 17 August 1964, the applicant accepted NJP under Article 15, UCMJ, for violating a lawful regulation by driving his 2 1/2 ton wrecker at an excessive rate of speed for the condition of the road.

5.  On 2 June 1964, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

6.  On 25 January 1965, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) on 20 January 1965.

7.  On 17 March 1965, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

8.  On 26 March 1965, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

9.  On 2 April 1965, the applicant accepted NJP under Article 15, UCMJ, for breaking restriction.

10.  On 12 June 1965, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

11.  On 14 June 1965, the applicant accepted NJP under Article 15, UCMJ, for breaking restriction and for failing to go to his appointed place of duty.

12.  On 7 January 1966, the applicant accepted NJP under Article 15, UCMJ, for being apprehended by civil police and charged with being drunk and disorderly.

13.  On 19 March 1966, the applicant accepted NJP under Article 15, UCMJ, for being AWOL from on or about 8 February to on or about 14 February 1966 and from on or about 21 February to on or about 28 February 1966.
14.  On 22 March 1966, the applicant completed a separation physical examination and was found qualified for separation.  A Standard Form 89 (Report of Medical History) indicates this was an expiration of term of service examination.

15.  On 5 May 1966, a mental hygiene consultation service report indicated that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  He was diagnosed with passive-aggressive reaction, a basic character and behavior disorder, and he was cleared from a psychiatric viewpoint for administrative action as deemed appropriate by his command.

16.  On 10 May 1966, the applicant was convicted, in accordance with his pleas, by a summary court-martial of being AWOL on 2 May 1966 and for absenting himself from his unit on 4 May 1966.  He was sentenced to be restricted for       30 days and to forfeit $50.00 pay for one month.

17.  The applicant’s complete separation packet is not available.  On 12 May 1966, the appropriate authority approved the applicant’s discharge and directed he be furnished an Undesirable Discharge Certificate.

18.  On 13 May 1966, the applicant was discharged, with an undesirable discharge and a characterization of service of under other than honorable conditions, in pay grade E-1, after completing 2 years, 11 months, and 27 days  of creditable active service with 16 days of lost time.  His DD Form 214 indicated the authority for his separation as Army Regulation 635-208.  His discharge orders indicated the reason for his separation as frequent incidents of a discreditable nature.

19.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

20.  Army Regulation 635-200 governs the separation of enlisted personnel.  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.  

21.  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.  In the absence of evidence to the contrary, it is presumed that 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.

2.  The applicant contended that he was very young at the time; however, he was almost 22 years old when he enlisted.  Even though it appears his command gave him many chances and allowed him to stay until his enlistment was almost over, during his service he accepted NJP eleven different times and received one summary court-martial.  Considering his numerous instances of misconduct, the type of discharge he was given was and still is appropriate.

3.  While the applicant’s pride in the military and in his two grandsons now serving in the Army is admirable, this is not sufficiently mitigating to warrant an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.




      _______xxxx _______   ___
               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)                                         AR20080009932





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ABCMR Record of Proceedings (cont)                                         AR20080009932



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