IN THE CASE OF:	  

		BOARD DATE:	  	  16 April 2009

		DOCKET NUMBER:  AR20080018385 


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 to a general under honorable conditions discharge. 

2.  The applicant states, in effect, that it has been his life's goal to rid himself of the wrong done to him by an officer.  

3.  The applicant submits a self-authored statement and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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.  On 9 April 1964, the applicant reenlisted in the Regular Army after having served honorably for 2 years, 3 months, and 27 days.  He had completed the required training and held military occupational specialty (MOS) 111.10 (Light Weapons Infantryman).  The highest rank he attained while serving this active duty tour was specialist four (SP4).

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.

4.  On 17 October 1964, the applicant accepted nonjudicial punishment (NJP) for being absent without official leave (AWOL) on or about 12 October through 
14 October 1964.  His imposed punishment included restriction and extra duty for 14 days and a forfeiture of $40.00 pay.

5.  On 18 December 1964, the applicant accepted NJP for going AWOL from 
27 November through 16 December 1964.  His imposed punishment included reduction to the rank of private first class (PFC)/E-3.

6.  On 5 January 1965, applicant accepted NJP for being AWOL on or about 
31 January 1964 through 4 January 1965.  His imposed punishment included a reduction to the rank of private (PV2)/E-2, restriction and extra duty for 14 days.

7.  On 20 January 1965, the applicant accepted NJP for going AWOL from 
7 January through 8 January 1965.  His imposed punishment was restriction and extra duty for 30 days.

8.  On 1 July 1965, the applicant was convicted by a special court-martial (SPCM) of being AWOL on or about 25 June through 28 June 1965, from 3 July through 7 July 1965, and for  breaking restriction on or about 3 July 1965.   His sentence consisted of restriction to the company area for 60 days.  

9.  On 24 August 1965, the unit's commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208.  The commander’s recommendation was based on the applicant’s misconduct.  The commander further stated that the applicant was not amenable to further rehabilitation and disposition is inappropriate because of his misconduct. 

10.  On 14 September 1965, the applicant acknowledged receipt of the commander’s recommendation and proposed actions under the provisions of Army Regulation 635-208.  The applicant waived consideration of his case by a board of officers and elected not to provide a statement in his own behalf. 

11.  The applicant also acknowledged that he understood that, if an Undesirable Discharge Certificate were issued, he could be deprived of many or all Army benefits; that he could be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. 

12.  On 24 September 1965, the appropriate authority approved the recommendation to administratively separate the applicant and directed that he receive an undesirable discharge under the provisions of Army Regulation 
635-208, paragraph 3a, Separation Program Number (SPN) 28B.  On 7 October 1965, the applicant was discharged with an under other than honorable conditions discharge.   The DD Form 214 he was issued at the time confirms he completed a total of 3 years, 9 months, and 15 days of creditable active service and he had 35 days of lost time.  

13.  Item 11c (Reason and Authority) of the applicant's DD Form 214 contains the entry SPN 28B.  Army Regulation 635-5 (Separation Documents) shows that the SPN code 28B is authorized for separations under the provisions of Army Regulation 635-208 with the following associated narrative reason:  "Involved in frequent incidents of a discreditable nature with civil or military authorities."

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 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  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, criminalism, 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. 

16.  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 contentions were carefully considered and found to be insufficient in merit. 

2.  Based on his record of indiscipline, SPCM conviction and record of AWOL, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge under honorable conditions.

3.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20080018385





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018385



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1