IN THE CASE OF:	  

		BOARD DATE:	        21 January 2009

		DOCKET NUMBER:  AR20080017314 


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 undesirable discharge.

2.  The applicant states that he failed to take responsibility for his actions due to alcoholism.  However, he is now alcohol-free and involved in his community through visiting hospitals and nursing homes, as well as being a deacon in his local church. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 22 July 1965;

	b.  a psychosocial assessment report, dated 7 July 2008;

	c.  a character reference letter from his town/city sheriff, dated 7 June 2006; and from his pastor, dated 21 May 2006;

	d.  a Certificate of Ordination, dated 4 February 2005; and

	e.  a letter, dated 6 March 2006, from a Member of Congress to the applicant regarding his appeal to the Social Security Administration.



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 15 January 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76A (Supply Clerk).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).  His records do not show any achievements or acts of recognition during his military service.

4.  On 14 January 1964, the applicant pled guilty at a Special Court-Martial to two specifications of being absent without leave (AWOL) during the period on or about 3 July 1963 to on or about 14 August 1963 and on or about 16 August 1963 to on or about 4 December 1963.  The Court sentenced him to reduction to private (PV1)/E-1, confinement at hard labor for 6 months, and a forfeiture of $55.00 pay per month for 6 months.  The sentence was adjudged on 14 January 1964 and was approved on 18 January 1964.

5.  On 14 February 1964, the unexecuted portion of the applicant’s sentence pertaining to forfeiture of $55.00 pay per month for 6 months was reduced to a forfeiture of $20.00 per month for the remaining period and the unexecuted portion of the sentence pertaining to confinement at hard labor for 6 months was suspended for 4 months.

6.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 17 March 1964, for failing to report to his unit on or about 19 February 1964.  His punishment consisted of an oral reprimand and a forfeiture of $10.00 pay;

	b.  on 13 October 1964, for being AWOL on or about 11 October 1964.  His punishment consisted of 14 days of restriction and 14 days of extra duty;

	c.  on 28 October 1964, for being AWOL on or about 24 October 1964 and for conducting himself in a disorderly manner at a public place, on or about 24 October 1964.  His punishment consisted of reduction to private (PV2)/E-2,
14 days of restriction, and 14 days of extra duty; and

	d.  on 3 December 1964, for being AWOL during the period on or about 23 November 1964 through on or about 25 November 1964.  His punishment consisted of reduction to PV1, a forfeiture of $19.00 pay, 14 days of restriction, and 14 days of extra duty.

7.  On 28 April 1965, the applicant pled not guilty at a Summary Court-Martial to one specification of wrongfully using provoking words and gestures toward a sergeant on or about 23 March 1965 and one specification of unlawfully striking another Soldier in the face with his fist on or about 24 March 1964.  The Court found him guilty of the second specification (substituting the words “striking in the face with his fist” with “stepping with his foot in the stomach”) and sentenced him to reduction to PV1 and forfeiture of $55.00 pay for one month.  The sentence was adjudged and approved on 28 April 1965.

8.  On 17 May 1965, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his previous periods of AWOL and Courts-Martial.  This bar to reenlistment was ultimately approved on 4 June 1965. 

9.  On 16 June 1965, the applicant pled guilty at a Summary Court-Martial to one specification of being AWOL during the period on or about 3 May 1965 through on or about 5 May 1965, and one specification of unlawfully striking another individual on the neck with his hand, on or about 27 February 1965.  The Court sentenced him to forfeiture of $55.00 pay per month for one month and confinement at hard labor for 30 days.  The sentence was adjudged on 16 June 1965.  On the same day, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 30 days and forfeiture of $55.00 pay per month for one month.  However, on 8 July 1965, the finding of guilty pertaining to the applicant’s specification of striking another individual on the neck with his hand was set aside.

10.  On 20 May 1965, the applicant’s immediate commander recommended the applicant be eliminated from the Army under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  The immediate commander remarked that the applicant's elimination would be appropriate as he was not only unsuitable by Army standards, but completely undesirable and that his lack of ability would not have rendered him able to adjust to military life.

11.  On 20 May 1965, the applicant acknowledged receipt of the notification of his pending separation action.  He further indicated he understood that if an undesirable discharge was issued to him, that such discharge would be under conditions other than honorable; that as a result of such discharge he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He further declined the opportunity of requesting counsel, waived right his right to a hearing by a board of officers and declined submitting statements on his own behalf.

12.  On 7 June 1965, the applicant’s intermediate commander recommended approval of the applicant’s elimination from the service in accordance with Army Regulation 635-209 with an Undesirable Discharge Certificate.

13.  On 17 June 1965, the applicant’s senior commander reviewed the applicant’s elimination packet and recommended the applicant be eliminated from military service under the provisions of Army Regulation 635-208 with a General Discharge Certificate.

14.  On 26 June 1965, the separation authority approved the applicant's elimination from the Army under the provision of Army Regulation 635-208 and directed he be furnished an Undesirable Discharge Certificate.  On 22 July 1965, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time confirms he was discharged in accordance with Army Regulation
635-208 with a character of service of under other than honorable conditions.  This form further shows he completed 1 year, 9 months, and 20 days of total active service, and had 261 days of lost time.

15.  The applicant submitted a copy of his psychosocial assessment report, dated 7 July 2008, that shows he was diagnosed with dysthymic disorder.

16.  The applicant submitted two character witness statements as follows:

	a.  In his statement, dated 7 June 2006, the town sheriff states that he has known the applicant as a member of the church for at least the past five years as well as being an upstanding citizen of the county; 
	b.  In his statement, dated 21 June 2006, the applicant’s pastor states that the applicant has been the church deacon since the church opened and that he is an honest person.

17.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board's 15-year statute of limitations. 

18.  Army Regulation 635-208, then in effect, set forth the policy for the administrative separation for unfitness.  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, criminal tendencies, 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.

19.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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. 

20.  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 contention that his failure to take responsibility for his actions was due to alcoholism is noted; however, there is no evidence that he addressed this condition with his chain of command or sought assistance through other support channels.  Furthermore, although his current diagnosis of dysthymic disorder is unfortunate; the applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.
3.  The evidence of records shows that the applicant's discharge was in accordance with applicable regulation and 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.

4.  The applicant's records reveal a disciplinary history which includes four instances of nonjudicial punishment, three instances of AWOL, a Special Court-Martial, two Summary Courts-Martial, several instance of confinement at hard labor, and a bar to reenlistment.  Based on his extensive 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)                                         AR20080017314



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ABCMR Record of Proceedings (cont)                                         AR20080017314



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