IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080015838 


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 an upgrade of his discharge to honorable.

2.  The applicant states that due to reasons beyond his control and unknown to him, his discharge was based on drinking and not the traumatic experience he witnessed and wasted his entire career trying to cover up.  He adds that he suffers from post-traumatic stress disorder (PTSD) after having witnessed a friend accidently kill himself and be classified as a suicide, when he knew better but did not stand up for his friend, rather he ran away and hid in a bottle.

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 was inducted into the Army of the United States on 2 June 1959.  He completed basic combat and advanced individual training and was awarded military occupational specialty 721.00 (Communications Specialist).  The highest rank/grade he attained during his military service was private/pay grade E-2.

3.  The applicant's records also show that he served in Germany from 27 October 1959 to 16 May 1961.  His awards and decorations include the Sharpshooter Marksman Marksmanship Qualification Badge with Rifle Bar (M-1). His records do not show any significant acts or achievements during his military service.

4.  On 18 April 1960, the applicant pled guilty at a special court-martial to one specification of damaging by neglect and without authority military property of a value of about $2,004.00 on or about 31 March 1960; one specification of operating a military vehicle while drunk thereby causing said vehicle to be upset and damaged on or about 31 March 1960; and one specification of being found drunk while on duty as motor courier on or about 31 March 1960.  The court sentenced him to reduction to private (PVT)/E-1, confinement at hard labor for 3 months, and forfeiture of $55.00 pay per month for 6 months.  The sentence was adjudged on 18 April 1960.

5.  On 21 April 1960, the convening authority approved the sentence and ordered it executed but the execution of that portion adjudging confinement was suspended for 3 months.  However, on 2 July 1960, the adjudged sentence to confinement at hard labor for 3 months was vacated and the unexecuted portion of the sentence to confinement was ordered executed.

6.  On 15 July 1960, the applicant pled not guilty at a special court-martial to one specification of operating a military vehicle while drunk on or about 30 June 1960, and one specification of wrongfully appropriating a military truck on or about 30 June 1960.  The court found him guilty of the specification to operating a military vehicle while drunk and sentenced him to confinement at hard labor for 6 months and forfeiture of $55.00 pay per month for 6 months.  The sentence was adjudged on 15 July 1960 and approved on 23 July 1960.

7.  On 10 April 1961, the applicant’s immediate commander recommended the applicant appear before a board of officers and be considered for elimination from the service in accordance with Army Regulation 635-208 (Personnel Separations) for unfitness.  The immediate commander remarked that the applicant made no effort to adjust to military service.  He was poorly motivated, emotionally immature, and completely irrational.  His uniform and appearance were one of the worst and he could not work at headquarters because he was not cleared.  His affinity for alcohol was severe and was frequently seen drunk during morning formations and lunch hour.  All efforts to motivate him were in vain.

8.  On 10 April 1961, the applicant was counseled and was advised of the basis of the recommended action and 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.

9.  On 11 April 1961, the applicant’s intermediate commander recommended approval of the applicant’s elimination from the service for unfitness and further recommended an Undesirable Discharge Certificate.

10.  On 27 April 1961, the separation authority approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-208 and directed that he be reduced to the lowest enlisted grade and be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 16 May 1961.  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 character of service of under other than honorable conditions.  This form further shows he completed a total of 1 year, 4 months, and 17 days of creditable active military service and 215 days of lost time.

11.  On 18 February 1972, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

12.  Army Regulation 635-208 (Personnel Separations) (later superseded by Army Regulation 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.

13.  Army Regulation 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.

14.  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 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 his misconduct was a result of a traumatic event.  Furthermore, contrary to the applicant's contention that his discharge was based on reasons beyond his control, the evidence of record shows that the applicant was notified of the reasons for the initiation of separation action against him in writing and that he acknowledged such notification.

3.  The applicant's records reveal a disciplinary history which includes two convictions by courts-martial with subsequent instances of 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)                                         AR20080015838



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ABCMR Record of Proceedings (cont)                                         AR20080015838



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