IN THE CASE OF:	  

		BOARD DATE:	        30 OCTOBER 2008

		DOCKET NUMBER:  AR20080013782 


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 undesirable discharge be upgraded to a more favorable discharge. 

2.  The applicant states that his discharge should be upgraded because he served faithfully, to include duty on the FULDA Gap, at a time when many Americans failed to do so and he did it at the age of 16.  He goes on to state that his age was not taken into consideration and he received no counsel at any level and was not advised of his rights.  He also states that he was punished twice for the same crime and was frustrated at the time because his command was trying to get him out quickly.   

3.  The applicant provides no additional documents with 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 was born on 20 January 1944 and enlisted in Jacksonville, Florida on 20 January 1961 for a period of 3 years, training in the armor career management field and assignment to Europe.

3.  He completed his basic combat training at Fort Benning, Georgia and his advanced individual training (AIT) at Fort Knox, Kentucky.  He completed his AIT and was transferred to Hohenfels, Germany on 11 August 1961.  He was advanced to the rank of private first class (E-3) on 21 September 1961.

4.  On 28 November 1961, he reenlisted for a period of 6 years and reassignment to an armored cavalry unit at   Hersfeld, Germany.  He was transferred to Bad Hersfeld on 5 December 1961 for duty as an armor crewman.   

5.  He departed Germany on 29 October 1963 and was transferred to Fort Hood, Texas, with a report date of 14 December 1963.  He arrived at Fort Hood on 3 February 1964 and charges were preferred against him for being absent without leave (AWOL). 

6.  On 14 February 1964, he was convicted by a special court-martial of being AWOL from 14 December 1963 to 3 February 1964.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay and reduction to the pay grade of E-1.  However, the convening authority suspended that portion of the sentence pertaining to confinement at hard labor for a period of 6 months, unless sooner vacated. 

7.  On 11 March 1964, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

8.  On 17 March 1964, the convening authority vacated the applicant's suspended sentence pertaining to confinement at hard labor for 6 months and directed that it be executed.  However, on 19 March 1964, the convening authority again suspended the punishment for a period of 4 months, unless sooner vacated.

9.  On 4 August 1964, the applicant was convicted by a summary court-martial of being AWOL from 24 July to 25 July 1964.  His punishment consisted of hard labor for 1 month.

10.  On 13 August 1964, the applicant's commander submitted a recommendation to bar the applicant from reenlistment.  He cited the applicant's disciplinary record and his failure to respond to numerous counseling sessions and attempts to rehabilitate him as the basis for his recommendation.  The applicant declined the opportunity to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 24 August 1964.

11.  Meanwhile, also on 13 August 1964, the applicant's commander submitted a recommendation to discharge the applicant under the provisions of Army Regulation 635-208 for unfitness.  The commander cited as the basis for his recommendation the applicant's disciplinary record, his frequent breaches of conduct and discipline, his untrustworthiness, his lack of regard for the rights of others, his lack of respect for authority, his poor appearance, his repeated failure to pay his just debts, the numerous bad checks he had written and his arrest by civil authorities in Killeen, Texas for writing bad checks.

12.  The applicant acknowledged that he had been advised of his rights and the basis for the recommendation for discharge.  He waived all of his rights, declined counsel and elected not to submit a statement in his own behalf.

13.  On 24 August 1964, the appropriate authority (a brigadier general) approved the recommendation for discharge and directed that the applicant be furnished an Undesirable Discharge Certificate.

14.  Accordingly, the applicant was discharged under other than honorable conditions on 28 August 1964, under the provisions of Army Regulation 635-208 for unfitness, due to an established pattern of failure to pay just debts.  He had served 3 years, 5 months and 18 days of total active service.  He had 52 days of lost time due to being AWOL.  He was 20+ years of age at the time of his discharge.

15.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reasons of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, repeated commission of petty offenses, shirking or establishing a pattern showing dishonorable failure to pay just debts.  An undesirable discharge was normally considered appropriate.

17.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.

18.  Paragraph 3-7b also 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 administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights. 

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant an upgrade when his record of service and his repeated misconduct during the period in question is taken into consideration and the lack of mitigating circumstances.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  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.




      _______ _XXX_______   ___
               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)                                         AR20080013782



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ABCMR Record of Proceedings (cont)                                         AR20080013782



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