IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080015225 


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, an upgrade of his discharge.

2.  The applicant states that there should be a letter in his records that shows his discharge was converted to honorable by a Member of Congress.  He also adds, in effect, that he needs his discharge upgraded in order to receive medical benefits from the Department of Veterans Affairs (DVA).

3.  The applicant did not provide any 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 for a period of 3 years on 30 April 1959.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 941.10 (Cook).  He was honorably discharged on 26 September 1961 for the purpose of immediate reenlistment and executed a 6-year reenlistment on 27 September 1961.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records also show that he served in Germany from 24 January 1960 to 13 July 1962.  His awards and decorations include the Sharpshooter Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  His records do not show any significant acts or achievements during his military service.

4.  On 1 June 1962, the applicant pled guilty at a Summary Court-Martial to one specification of being absent without leave (AWOL) on 28 May 1962.  The Court sentenced him to reduction to private first class (PFC)/E-3 and forfeiture of $50.00 pay for one month.  The sentence was adjudged and approved on 1 June 1962.

5.  On 4 November 1963, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period from on or about 19 October 1963 through on or about 22 October 1963.  His punishment consisted of reduction to private (PV2)/E-2.  

6.  On 18 February 1964, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period from on or about 6 January 1964 through on or about 20 January 1964.  The Court sentenced him to reduction to private (PV1)/E-1, confinement at hard labor for 3 months, and forfeiture of $45.00 pay per month for 3 months.  The sentence was adjudged on 18 February 1964 and approved on 28 February 1964. 

7  Section 6 (Time Lost) of the applicant’s DA Form 24 (Service Records) shows multiple entries of AWOL and/or confinement during the following periods:

	a.  from 13 September 1963 to 17 October 1963, 35 days of AWOL;

	b.  from 19 October 1963 to 22 October 1963, 4 days of AWOL;

	c.  from 6 January 1964 to 20 January 1964, 15 days of AWOL; and

	d.  from 18 February 1964 to 16 March 1964, 28 days of confinement.

8.  On 6 March 1964, the applicant’s immediate commander initiated elimination from the service action against the applicant in accordance with Army Regulation (AR) 635-208 (Personnel Separations) for unfitness.  The immediate commander cited the applicant’s frequent incidents of deliberately absenting himself without authority, without regard to his or his family’s or unit mission, and established a pattern of showing dishonorable failure to pay his financial debts.  Additionally, he exhibited apathy towards his military obligations, and despite serving in two different primary duty positions under two different commanders, he continued to disregard his obligations and reacted to impulsiveness, thereby rendering himself undependable, undesirable, and non-rehabilitable.  The immediate commander further recommended an Undesirable Discharge Certificate.

9.  On 10 March 1964, the applicant was counseled and was advised of the basis of the recommended action, was furnished a copy of his commanding officer’s report and copies of the statements submitted to support the recommendation of his discharge.  He was further afforded the opportunity to consult counsel; however, he declined.  He also waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf.

10.  On 10 March 1964, the applicant’s intermediate commander recommended approval of the applicant’s elimination from the service for unfitness and further recommended an Undesirable Discharge Certificate.

11.  On 12 March 1964, the separation authority approved the applicant's discharge for unfitness under the provisions of Army Regulation (AR) 635-208 and directed that he be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 16 March 1964.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged with an undesirable discharge, with service characterized as under other than honorable conditions.  This form further shows he completed a total of 4 years, 7 months, and 25 days of creditable active military service.  This form, however, did not list any lost time due to AWOL and confinement.  

12.  On 26 February 1982, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.   

13.  AR 635-208 (Personnel Separations) (later superseded by AR 635-200), in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one 
or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  AR 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  AR 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 contends that his undesirable discharge should be upgraded.

2.  The applicant’s entire record of service was considered.  However, there is no evidence in the available records and the applicant did not provide any evidence showing that a Member of Congress issued a letter converting his character of service to honorable. 

3.  The applicant's records reveal a disciplinary history which includes convictions by courts-martial, one instance of Article 15, and multiple instances of AWOL and/or confinement.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and there is no indication of procedural errors that would tend to jeopardize his rights.  Additionally, the character of the discharge is commensurate with the applicant's overall record of military service.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this 
requirement.  Based on his 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, the applicant is not entitled to an honorable or a general discharge.

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)                                         AR20080015225



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ABCMR Record of Proceedings (cont)                                         AR20080015225



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