IN THE CASE OF:	 

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20080016372 


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.

2.  The applicant states, in effect, that he realizes that he made mistakes, but he desires a better discharge.  The applicant also states that he was wrongfully reduced in grade for choosing to attend church services on Easter Sunday prior to preparing a vehicle for an inspection that was scheduled for the next day, in spite of the fact that he accomplished the task after he attended church and the vehicle passed the inspection the following day.  The applicant continues that it was not even his assigned vehicle and that the Soldier who was responsible for the vehicle was spending the weekend with his girlfriend in the village.  The applicant also contends that he was wrongly passed over for a promotion that he felt he deserved because he had more time in grade than his peers.  These events caused the applicant to feel he had been treated unjustly and caused him to misbehave.  

3.  The applicant admits that there was no real excuse for his behavior and is apologetic for his actions.  He attributes his behavior to the fact that he was young and never really adjusted to the military lifestyle after serving overseas.  He states, in effect, that he has been a model citizen for the last 40 years, he has done a lot for his community, and that he served his country proudly.

4.  The applicant provides no documentary evidence in support of this 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 record shows he was born on 19 May 1946.  He enlisted in the Regular Army with his parents' consent on 1 October 1963, at the age of 17 years, 4 months, and 13 days.  He completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 177.00 (Air Defense Missile Crewman (Nike-Hercules)).  The applicant completed a total of 1 year and 29 days of creditable active federal service prior to being honorably discharged on 29 October 1964 for the purpose of immediate reenlistment.  The rank he held at the time of his reenlistment was private (PV2)/pay grade E-2.

3.  During the applicant's second enlistment, he acquired primary MOS 63G (Fuel and Electrical Systems Repairman).  The applicant served an overseas tour in the Republic of Korea during the period from 22 May 1965 through 22 May 1966. The highest rank he attained while serving on active duty was private first class (PFC)/E-3; however, the rank he held at the time of his discharge was private (PV1)/pay grade E-1.

4.  The applicant's disciplinary history includes acceptance of nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ) on   numerous occasions during the period from 6 October 1964 through 20 April 1966.  His various offenses included:  leaving his post prior to being properly relieved, willfully damaging government property, failing to go at the time prescribed to his appointed place of duty, visiting an off-limits area, and willfully disobeying a lawful order from a superior noncommissioned officer.  The punishments imposed for these offenses included reduction in grade, forfeiture of pay and allowances, and extra duty.

5.  Headquarters, Special Troops, U.S. Army Garrison, Fort Dix, New Jersey, Summary Court-Martial Order 15, dated 23 February 1967 shows the applicant was tried and convicted by a Summary Court-Martial for two specifications of violation of Article 86 of the UCMJ by absenting himself from his unit without proper authority on two separate occasions.  As a result of his conviction, the applicant was sentenced to be reprimanded.  The sentence was adjudged on 21 February 1967.

6.  Headquarters, Special Troops, U.S. Army Garrison, Fort Dix, Special Court-Martial Order 842, dated 23 June 1967 shows the applicant was tried and convicted by a Special Court-Martial for violation of Article 86 of the UCMJ by absenting himself from his unit without proper authority.  As a result of his conviction, the applicant was sentenced to be restricted to the limits of Fort Dix for 30 days and to forfeit $40.00 per month for one month.  The sentence was adjudged on 16 June 1967.

7.  Headquarters, Special Troops, U.S. Army Garrison, Fort Dix, Special Court-Martial Order 73, dated 15 January 1968 shows the applicant was tried and convicted by a Special Court-Martial for violation of Article 86 of the UCMJ by absenting himself from his unit without proper authority.  As a result of his conviction, the applicant was sentenced to be confined at hard labor for five months and to forfeit $59.00 per month for five months.  The sentence was adjudged on 29 December 1967.

8.  The record shows the applicant departed his unit in an absent without leave (AWOL) status on 10 occasions for a total of 272 days.  The record also shows he was confined during the period from 6 November 1967 through 26 March 1968 for 142 days, which resulted in a cumulative total of 414 days of time lost between 3 September 1966 and 26 March 1968.  During this period of time, the applicant was dropped from the rolls of the Army for desertion on 4 separate occasions.

9.  On 7 February 1968, the applicant’s unit commander notified him that he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 6a, for unfitness.  The unit commander continued by advising the applicant of his rights to present his case before a board of officers, to submit written statements in his own behalf, to be represented by appointed legal counsel, or to waive these rights in writing.  On 7 February 1968, the applicant acknowledged receipt of the unit commander's notification.

10.  Special Processing Detachment, Special Troops, U.S. Army Garrison, Fort Dix, Letter, dated 15 March 1968, shows the applicant's unit commander recommended that he be discharged under the provisions of Army Regulation 635-212 for unfitness and that he be issued an Undesirable Discharge Certificate.

11.  On 16 March 1968, the applicant consulted with legal counsel regarding the basis for the contemplated action to accomplish his separation for unfitness.  After consulting with counsel, the applicant waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by appointed military or hired civilian counsel, and elected not to submit statements in his own behalf.  The applicant also stated he understood that he could expect to encounter substantial prejudice in civilian life in the event he was issued a general discharge under honorable conditions.  He indicated he also understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and could expect to encounter substantial prejudice in civilian life.

12.  On 21 March 1968, the separation approval authority approved the applicant's discharge and directed that he be furnished an Undesirable Discharge Certificate.

13.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 28 March 1968, confirms that he was discharged accordingly.  This DD Form 214 shows the applicant was discharged under the provisions of Army Regulation 635-212, paragraph 6a.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.

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

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

16.  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.

17.  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 undesirable discharge should be upgraded was carefully considered and determined to lack merit.

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

3.  Records show that the applicant's age ranged from 18 to 21 years of age at the time of his offenses.  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.

4.  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.  It is also noted that the characterization of service for this type of discharge is normally undesirable and that the applicant was made aware of that prior to his discharge.


5.  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 did not submit any evidence that would satisfy this requirement.

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)                                         AR20080016372



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ABCMR Record of Proceedings (cont)                                         AR20080016372



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