IN THE CASE OF:	  

		BOARD DATE:	      31 MARCH 2009

		DOCKET NUMBER:  AR20080019344 


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 that his dad asked him to quit school at 16 years old to go to work to help his family.  His dad then told him to join the Army.  He claims that he was not ready for military life at 16 years old.  He also claims that he was too young and could not adapt to all of the responsibilities.  He regrets that he did not stay and make a career out of it [Army].  He states he had no education or training to help him.  

3.  The applicant provides 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.  The applicant enlisted in the Regular Army on 12 September 1962 at the age of 17 with parental consent.  He completed training as a heavy weapons infantryman.  His highest rank held was private first class, pay grade E-3.

3.  On 23 April 1963, the applicant was convicted by a summary court-martial of failing to obey a lawful order, two specifications.  He was sentenced to confinement at hard labor for one month (suspended), a forfeiture of $55.00 pay for one month, and reduction to private, E-1.  

4.  On 26 October 1963, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from his superior noncommissioned officer (NCO).  

5.  On 29 January 1964, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from his superior NCO.  

6.  On 12 March 1964, the applicant was convicted by a special court-martial of disobeying a lawful order from his superior NCO.  He was sentenced to confinement at hard labor for six months, a forfeiture of $55.00 pay for six months, and reduction to private, E-1.  

7.  On 8 April 1964, the applicant underwent a psychiatric examination.  He was diagnosed as having a passive-aggressive character disorder, chronic, severe, manifested by poorly controlled hostility, resentment of authority and authority figures by disregard of rules and regulations and by impaired judgment and insight.  The psychiatrist stated that the applicant verbally expressed a desire to stay in the Army but his numerous infractions of the rules cast serious doubt on his sincerity.  The applicant was psychiatrically cleared for appropriate administration disposition.

8.  The applicant's election of his rights is not available.

9.  His company commander recommended that the applicant be discharged prior to his expiration of term of service (ETS) for unfitness under the provisions of Army Regulation 635-208 with issuance of an undesirable discharge.  The company commander cited the reasons for the recommendation were the applicant’s frequent refusal to obey his immediate superiors; his untrustworthiness; and his lack of regard for the rights of others.

10.  On 7 May 1964, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-208 for unfitness - frequent incidents of a discreditable nature with civil or military authorities with issuance of an Undesirable Discharge Certificate.  
11.  Accordingly, the applicant was discharged on 11 May 1964.  He completed 1 year, 5 months, and 17 days of active military service with 73 days of lost time.

12.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

13.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.  

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service and general aptitude.  Where a member has served faithfully and performed to the best of his or her ability, an honorable discharge certificate should be furnished.  

15.  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 that he was too young and could not adapt to all of the responsibilities of the Army were noted.  However, these issues are not sufficiently mitigating to grant relief in this case.  

2.  The applicant's service record shows he received two Article 15s, one summary court-martial, and one special court-martial.  Based on this 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, he is not entitled to either a general discharge or an honorable discharge.
3.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20080019344



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ABCMR Record of Proceedings (cont)                                         AR20080019344



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