IN THE CASE OF:	  

		BOARD DATE:	  19 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014069 


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 be upgraded to honorable. 

2.  The applicant states, in effect, that he believed that his discharge would be upgraded to honorable 6 months after his discharge.  He volunteered for the Army for 3 years and completed 2 years of his service.  He is now unable to make a living doing what he has done for 40 years.  He further states, in effect, that he needs his discharge upgraded so he can qualify for social security benefits.

3.  In support of his application, the applicant provides a letter from his brother.

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 military record shows he enlisted in the Regular Army, in pay grade E-1, on 2 December 1966, for 3 years.

3.  During the basic combat training phase of the applicant's enlistment he was reported absent without leave (AWOL) from 1 February 1967 to 18 March 1967.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was in civil confinement from 19 March through
3 December 1967.  He was confined by military authorities from 4 December 1967 to 30 January 1968.

4.  On 10 January 1968, the applicant's unit commander was asked to make recommendations as to whether the applicant should be retained in the service or discharged.

5.  A Psychiatric Evaluation, dated 22 January 1968 shows an evaluation found the applicant had no mental defects sufficient to warrant separation from the service under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He was found to be mentally responsible, and to distinguish right from wrong and to adhere to the right.  He was also found to have the mental capacity to understand and participate in board proceedings.  After the evaluation, the applicant was diagnosed with an antisocial personality, chronic, severe, manifested by impulsiveness and inability to tolerate authority.  The diagnosis was determined not to be in the line of duty and existed prior to service.

5.  On 25 January 1968, the applicant was convicted by special court-martial of one specification of AWOL from 1 February to 4 December 1967.  He was sentenced to confinement at hard labor for six months and to forfeit $63.00 pay per month for six months.  The sentence was adjudged on 25 January 1968.

6.  On 30 January 1968, the applicant's sentence was approved.  However, that portion of the sentence adjudging confinement at hard labor for six months was suspended for six months, at which time, unless sooner vacated the suspended portion would be remitted without further action.

7.  In a statement, dated 23 February 1968 the applicant stated that he had been convicted of drunkenness, assault, disorderly conduct, and assault with a deadly weapon on 23 March 1967 and sentenced to 13 months probation.  He stated he had not appealed his conviction and he did not intend to do so in the future.


8.  On 26 February 1968, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-206.

9.  On 26 February 1968, the applicant, through counsel, acknowledged receipt of the proposed discharge from the service.  He waived his right to have his case heard before a board of officers, elected not to submit a statement in his own behalf, and stated he understood that he might be issued a discharge with his service characterized as under other than honorable conditions.

10.  On 27 February 1968, the Special Troops Commander recommended the applicant be eliminated from the Army under the provisions of Section VI, Army Regulation 635-206, with an undesirable discharge.

11.  On an unspecified date after 26 February 1968, the separation authority approved the recommendation for the applicant's discharge under the provisions of Army Regulation 635-206, for Misconduct – Civil Conviction, with an undesirable discharge.

12.  Accordingly, the applicant was discharged on 19 March 1968, in pay grade E-1, under the provisions of Army Regulation 635-206.  His character of service was shown as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He was credited with 3 months and 18 days total active service and lost time from 1 February 1967 through 30 January 1968.

13.  There is no evidence that the applicant applied for a discharge upgrade to the Army Discharge Review Board within its 15-year statute of limitations.

14.  The applicant submitted a letter, dated 10 August 2008 wherein the author stated that he was the applicant's brother.  He stated that the applicant had been hospitalized for 2 months.  He also stated, in effect, that the applicant had asked him to assist him in getting his DD Form 214 upgraded for the purpose of entitlement to disability benefits from the Social Security Administration.  The individual further stated that he was also a veteran with an honorable discharge.

15.  Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniformed Code of Military Justice included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted an undesirable discharge was considered appropriate.



16.  Army Regulation 635-200, governs the policies and procedures for separation of enlisted personnel.  Paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

17.  Army Regulation 635-200, 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contention has been noted; however, contrary to the applicant's assertion that the undesirable discharge should have been upgraded automatically 6 months after his discharge, the Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  He has provided no evidence or argument to show the discharge should be upgraded and his military records contain no matter upon which an upgrade should be granted.

3.  The evidence of record shows that the applicant was recommended for discharge with an undesirable discharge for misconduct.  The applicant, after consulting with counsel, waived his rights to appear before a board of officers to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.

4.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

6.  In order to justify correction of a military record, the applicant must show, 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080014069



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ABCMR Record of Proceedings (cont)                                         AR20080014069


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