IN THE CASE OF:	 

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080014765 


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 family-related problems led to his inappropriate behavior.

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 entered in the Regular Army on 15 November 1962.  Records show that he completed basic and advanced individual training and was awarded the military occupational specialty 63B (Wheel Vehicle Mechanic).  The highest rank he attained while serving on active duty was sergeant/pay grade E-5.

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

4.  Records show that the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:  on 7 August 1964, for being absent without proper authority during the period 3 August 1964 through 4 August 1964 with a punishment of reduction to private first class/pay grade E-3 and extra duty for 14 days; and on 20 March 1967, for being absent without proper authority on or about 20 March 1967.
	
5.  Records indicate that the applicant was convicted by a special court-martial on the following occasions:  on 22 December 1966, for being absent without proper authority during the period on or about 7 November 1966 to on or about 7 December 1966 with a punishment of forfeiture of $50.00 per month for 2 months; on 27 October 1967, for being absent without proper authority during the period on or about 11 September 1967 to on or about 29 September 1967 with a punishment of forfeiture of $40.00 per month for 6 months and reduction in grade to specialist four/pay grade E-4; and on 20 March 1968, for being absent without proper authority during the period on or about 26 November 1967 to on or about 6 March 1968 with a punishment of confinement at hard labor for 6 months, forfeiture of $41.00 per month for 6 months, and reduction in grade to private/pay grade E-1.

6.  On 28 March 1968, the applicant was advised by consulting counsel of the basis for the contemplated separation for unfitness and its effects and the rights available to him.  The applicant acknowledged that he understood he may encounter substantial prejudice in civilian life in the event that a general discharge under honorable conditions was issued.  The applicant also acknowledged that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

7.  On 11 April 1968, the separation authority approved the applicant's elimination from the service.  On 18 April 1968, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations) with an under other than honorable 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 4 years, 10 months, and 20 days of creditable active military service.

8.  On 6 May 1980, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.  

11.  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.  The applicant's record of indiscipline includes punishment twice under the provisions of Article 15 of the UCMJ and three convictions by a special court-martial.

3.  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.

4.  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)                                         AR20080014765



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