IN THE CASE OF:	  

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080013170 


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 undesirable discharge (UD) be upgraded to a general discharge (GD), under honorable conditions.   

2.  The applicant states, in effect, he was in a group of five who did not return as scheduled and while the others received non-judicial punishment (NJP), he was court-martialed.  He claims he was unfairly singled out and not adequately defended by his counsel.  

3.  The applicant provides no documentary evidence 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 record shows that he enlisted in the Regular Army (RA) and entered active duty on 28 February 1963.  He successfully completed basic combat training at Fort Dix, New Jersey, and was assigned to Fort Sam Houston, Texas, to attend advanced individual training (AIT).  

3.  The applicant’s Service Record (DA Form 24) shows, in Section 1 (Appointments, Promotions, or Reductions) that he was advanced to private/E-2 (PV2) on 28 June 1963, and that this is the highest rank he held while serving on active duty.  It also shows he was reduced to private/E-1 (PV1) on 11 September 1963.  Section 6 (Time Lost) shows that he was absent without leave (AWOL) for 3 days from 4 through 6 August 1963, and that he was in military confinement for 75 days from 7 August through 20 October 1963.  His record documents no acts of valor, significant achievement, or service warranting special recognition.    

4.  On 28 August 1963, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ), by being AWOL from on or about 3 through 7 August 1963; and of violating Article 134 of the UCMJ by wrongfully communicating a threat to kill another Soldier on or about 8 August 1963.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $55.00 per month for 6 months.  

5.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include a properly constituted separation document (DD Form 214) that shows he was discharged under the provisions of Army Regulation 635-208, by reason of involvement in frequent incidents of a discreditable nature with civil or military authorities.  It also shows that at the time of his discharge, he had completed a total of 5 months and 
10 days of creditable active military service and had accrued 78 days of time lost due to being AWOL and in confinement.  

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

7.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service.  The regulation provided, in pertinent part, for the separation of members involved in frequent incidents of a discreditable nature with civil or military authorities for unfitness.  While the separation authority could grant a GD or honorable discharge (HD), if warranted by the member's overall record of service, the issue of an UD was normally considered appropriate for members separated under these provisions. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was singled out and that he did not receive adequate counsel were carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of Army Regulation 635-208, by reason of involvement in frequent incidents of a discreditable nature with civil or military authorities.  Absent any evidence to the contrary, it is concluded that his discharge processing was accomplished in accordance with the applicable regulation, that all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  

4.  The evidence of record shows the applicant had a disciplinary history that included a SPCM conviction.  His record documents no acts of valor, significant achievement or service warranting special recognition.  As a result, it is concluded his discharge accurately reflects his overall record of undistinguished service.  His overall record of service did not support the issue of a GD or HD at the time of his discharge, and does not support an upgrade at this time.  

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


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)                                         AR20080013170



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013170



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1