IN THE CASE OF:	  

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:   AR20080014390 


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 discharge be upgraded. 

2.  The applicant states, in effect, that he was young and immature.

3.  The applicant provides no additional 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 records show he enlisted in the Regular Army on 16 February 1959 at the age of 17 with parental consent.  Records show that he completed basic and advanced individual training and was awarded the military occupational specialty 111.00 (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was private/pay grade E-2.

3.  The applicant’s records do not show any significant acts of valor during his military service.

4.  Records show that the complete facts and circumstances of the applicant's discharge are not available for review with this case.  There are, however, sufficient records available to make a fair and impartial decision in this case.

5.  Records show that the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 November 1959 for missing bed check with a punishment of seven days restriction.

6.  Records indicate that the applicant was convicted by a special court-martial on the following occasions:  on 28 October 1959, for breaking arrest on or about 4 October 1959 and on or about 12 October 1959, with a punishment to perform hard labor for 45 days and forfeiture of $35.00 per month for three months; and on 7 January 1960, for being absent without leave (AWOL) on or about 2 December 1959 through on or about 3 December 1959, wrongfully appropriating a quarter-ton truck on or about 2 December 1959, through neglect, damaging by accident a quarter-ton truck on or about 3 December 1959, being AWOL during the period on or about 12 December 1959 through 14 December 1959, and wrongfully appropriating a two and one-half ton truck on or about 12 December 1959 with a punishment of confinement to hard labor for six months, forfeiture of $28.00 per month for six months, and reduction to the grade of private/pay grade E-1.

7.  On 5 January 1960, the commander recommended the applicant be discharged under the provisions of Army Regulation 635-208 (Personnel Separations) for frequent incidents of a discreditable nature.

8.  On 1 February 1960, the appropriate authority approved elimination from the service and directed discharge under the provisions of Army Regulation 635-208 with an undesirable discharge.

9.  On 2 March 1960, the applicant was discharged with an under other than honorable conditions characterization of service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued confirms he completed a total of 10 months and 18 days of creditable active military service with 58 days of lost time due to AWOL and confinement.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when in the judgment of the commander it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

12.  Army Regulation 635-200 (Personnel Separations), 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.

13.  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.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Records show that the applicant was 17 to 18 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's record of indiscipline includes punishment under the provisions of Article 15 of the UCMJ and convictions by special court-martial for various offenses including being AWOL, breaking arrest, and stealing.
4.  Based on this 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, he is not entitled to either a general or an honorable discharge.

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

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)                                         AR20080013198



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ABCMR Record of Proceedings (cont)                                         AR20080014390



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