IN THE CASE OF:	

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080011162 


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 reconsideration of his earlier request for an upgrade of his discharge.

2.  The applicant states, in effect, that he has stayed out of trouble since his discharge and has dedicated 25 years to his community in the form of volunteering with children’s charities and veterans groups. 

3.  The applicant provides a copy of his National Criminal Records Report, dated 17 June 2008; three character reference letters; a copy of a letter of thanks to members, guests and attendees of a Fraternal Order of Elks Flag Day Ceremony, dated 14 June 2008; and a copy of a local monthly Newsletter, dated June 2008, in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011836, on 25 January 2008.

2.  The applicant submitted a copy of his National Criminal Records Report, three character reference letters, a copy of a letter written to members, guests and attendees of a Fraternal Order of Elks Flag Day Ceremony, and a copy of a local Benevolent and Protective Order of Elks monthly Newsletter, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant’s records show he enlisted in the Regular Army for a period of 3 years on 15 July 1959.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 611.20 (Construction Machine Operator).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

4.  On 9 November 1961, the applicant pled not guilty at a Special Court-Martial to one specification of wrongfully using reproachful words, towards a sergeant, on or about 15 September 1961.  The Court found him guilty and sentenced him to confinement at hard labor for 2 months, a forfeiture of $70.00 pay per month for 2 months, and reduction to private (PVT)/E-1.  The sentence was adjudged on 9 November 1961 and approved on 21 November 1961.

5.  On 6 December 1961, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 2 months was suspended until 9 January 1962. 

6.  On 27 February 1962, the applicant pled guilty at a Summary Court-Martial to one specification of being absent without leave (AWOL) from 23 February through 26 February 1962.  The Court sentenced him to a forfeiture of $25.00 pay.  The sentence was adjudged and approved on 27 February 1962.  

7.  On 21 March 1962, the applicant pled not guilty at a Summary Court-Martial to one specification of being absent without leave (AWOL) from 17 March through 20 March 1962.  The Court found him guilty of the charge and specification and sentenced him to a forfeiture of $25.00 pay.  The sentence was adjudged and approved on 21 March 1962.   

8.  The applicant’s service records show that he was placed in military confinement from 30 March through 15 April 1962.  His service record also shows that he was placed in civil confinement from 6 June through 30 June 1962 and from 1 July through 20 August 1962.

9.  On an unknown date, the applicant was convicted by civilian authorities of an unknown offense.    

10.  The facts and circumstances surrounding the applicant’s discharge are not available for review.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged on 
27 August 1962, under the provisions of Army Regulation (AR) 635-206 (Personnel Separations) for conviction by civil court, with a character of service as under other than honorable conditions.  This form also shows he completed 
2 years, 9 months, and 3 days of creditable active service and he had 90 days of lost time due to being AWOL, in military confinement, and in civil confinement.  

11.  The applicant submitted a copy of his National Criminal Records Report, dated 17 June 2008, which shows that “there were no criminal records found for this individual.”

12.  The applicant also submitted three character reference letters as follows:

    a.  in a letter, dated 19 March 2008, a member of the Benevolent and Protective Order of Elks, comments on the applicant’s reliability and trustworthiness and states that the applicant has been involved in fund-raising activities for his community and that he is also involved in veterans programs;

   b.  in a letter, dated 29 March 2008, the President of the American Legion Auxiliary, Vogel-Lee Post Number 47, Lake Worth, Florida, comments on the applicant’s honesty, hard work, and support of veterans; and

   c.  in a second letter, dated 29 March 2008, the President of the American Legion Auxiliary, expresses his sincere thanks to the applicant and the Elk Club, for making St. Patrick’s Day celebration a great success. 

13.  The applicant submitted a copy of the Benevolent and Protective Order of Elks State Vice Chairman Americanism Committee, commenting on the applicant’s performance during the 14 June 2008 flag day celebration.

14.  The applicant also provided a copy of a June 2008 Benevolent and Protective Order of Elks Newsletter, in which the applicant is shown as honoring a boy-scout who was raised to Eagle Scout.

15.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

16.  AR 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally considered appropriate.  

17.  AR 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.  
18.  AR 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’s post service achievements, his volunteer work, and support of his community and veterans were considered.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  The applicant's records reveal an extensive history of misconduct that includes several instances of courts-martial and multiple instances of lost time due to being AWOL and/or in confinement.  It is presumed that the applicant's discharge was in accordance with applicable regulation and 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.

3.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable 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 to amend the decision of the ABCMR set forth in Docket Number AR20070011836, dated 25 January 2008.




      _______ _ 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)                                         AR20080011162



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ABCMR Record of Proceedings (cont)                                         AR20080011162



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