DOCKET NUMBER:  AR20090000331 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he was a young and dumb kid that never took into fact what his actions would mean for his future.  He states that all of his life he has lived and regretted his foolish mistakes.  He states “maybe as old as I am now, I can find that God is not the only one that forgives.”

3.  The applicant provides no additional documents 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 25 July 1961, the applicant enlisted in the Regular Army (RA) at age 18, in Charlotte, North Carolina, for 3 years, in the pay grade of E-1.  He successfully completed his training as a light weapons infantryman.  

3.  The applicant was advanced to the pay grade of E-2 on November 1961 and he was transferred to Germany on 10 January 1962.  He was advanced to the pay grade of E-3 on 26 March 1962.

4.  The applicant was honorably discharged on 26 July 1962, under the provisions of Army Regulation 625-205, for the purpose of immediate reenlistment.  Accordingly, on 27 July 1962, the applicant reenlisted in the RA  for 6 years.

5.  The applicant’s records show that he returned to the Continental United States on 3 September 1962.

6.  On 11 December 1962, the applicant was convicted by a summary 
court-martial of violating a lawful general order by selling his cigarette ration card in August 1962, while he was in Germany.  He was sentenced to hard labor for 1 month, a reduction in pay grade and a forfeiture of pay in the amount of $60.00.

7.  On 7 February 1964, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 5 January 1964 until 27 January 1964.  He was sentenced to hard labor without confinement for 3 months, a reduction in pay grade and a forfeiture of pay in the amount of $55.00 per month for 6 months.

8.  Nonjudicial punishment (NJP) was imposed against the applicant on 24 April 1964, for missing bed check.  His punishment consisted of a forfeiture of pay in the amount of $19.00.

9.  The applicant was convicted by a summary court-martial on 8 May 1964, of being AWOL from 24 April 1964 until 29 April 1964.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay in the amount of $73.00.

10.  On 13 June 1964, the applicant was convicted by a summary court-martial of being AWOL from on or about 7 June 1964 until on or about 10 June 1964.  He was sentenced to 30 days of hard labor without confinement for 30 days (hard labor suspended for 30 days) and a forfeiture of pay in the amount of $25.00.



11.  On 8 May 1964, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-208.  His commander cited his disciplinary record as the basis for the recommendation for discharge.  The applicant acknowledged receipt of the notification on 8 May 1964 and, after being afforded counsel, he waived his rights and he elected not to submit a statement in his own behalf.

12.  The appropriate authority approved the recommendation for discharge on 20 June 1964, and he directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 10 July 1964, the applicant was discharged under the provisions of Army Regulation 635-208, for unfitness, due to frequent involvement in incidents of a discreditable nature with military or civilian authorities.  He had completed 2 years, 9 months and 25 days of total active service and he had approximately 53 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

13.  A review of the applicant’s records does not show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 sets forth the basic authority 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.  

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 contends that his undesirable discharge should be upgraded to a general discharge because he was young and “dumb” when he was in the Army.

2.  His contentions have been noted.  However, they are not sufficiently mitigating to warrant the requested relief.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the fact of the case.

4.  The applicant records show that he was 18 years old at the time of his enlistment in the RA and he was 19 years old at the time of his first conviction by a summary court-martial of a selling his cigarette ration card.  He was convicted by courts-martial on three more occasions and he had NJP imposed against him on one occasion as a result of his numerous action of indiscipline.  Considering the repeated nature of his misconduct, it does not appear that the undesirable discharge that he received was too harsh.

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 has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090000331



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ABCMR Record of Proceedings (cont)                                         AR20090000331



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