IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090000991 


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.

2.  The applicant states, in effect, he was sentenced to serve six months in the stockade as a result of a special court-martial and while serving his sentence, he was visited by his former captain who told him he could get him out of the Army on a general discharge if he was to sign some documents.  He argues that after being incarcerated for several weeks, being 18 years old and not having the proper legal advice, he thought it were a good idea and when given his discharge papers he realized it was not a general discharge but an undesirable discharge.  The applicant concludes that he has always been ashamed of the fact that he was tricked into signing the documents which resulted in receiving an undesirable discharge.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 1 December 1959 and upon completion of initial entry training was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

3.  On 2 April 1960, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to repair.  The punishment consisted of extra duty for two hours per day for 14 days.

4.  On 20 April 1960, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 4 April 1960 to 5 April 1960; from 
9 April 1960 to 10 April 1960; from 2100 to 2300 hrs on 13 April 1960; and for appearing in an improper uniform on 2 occasions.  The punishment consisted on forfeiture of $55.00 for 1 month.

5.  On 10 May 1960, the applicant was convicted by a special court-martial of failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order from his superior noncommissioned officer.  The punishment consisted of confinement at hard labor for 6 months and forfeiture of $52.00 per month for 6 months.

6.  The applicant's records include statements from his chain of command which show he was counseled on numerous occasions for unsatisfactory performance, disrupting discipline, indifferent attitude, and for being disrespectful toward superiors.

7.  The applicant's DA Form 24 (Service Record) shows he was in confinement from 16 May 1960 through 13 July 1960.

8.  On 27 May 1960, the applicant's unit commander initiated a recommendation to eliminate him from the service under the provisions of Army Regulation 
635-208 (Personnel Separations) because of frequent incidents of a discreditable nature.

9.  On 6 June 1960, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-208 for unfitness.  He waived his rights to a hearing before a board of officers and to submit written statements on his own behalf.  He also declined counseled.  He indicated he understood that an undesirable discharge may be issued to him and such a discharge will be under conditions other than honorable; that as a result of such discharge he might be deprived of many or all rights as a veteran under both Federal and State law; and that he might expect to encounter substantial prejudice in civilian life.

10.  On 20 June 1960, the applicant completed a mental status evaluation and was found able to distinguish right from wrong and to adhere to the right and could participate in board proceedings.

11.  On 11 July 1960, the appropriate authority approved the recommendation and directed issuance of an undesirable discharge.

12.  Accordingly, the applicant was discharged on 14 July 1960 with a discharge under other than honorable conditions under the provisions of Army Regulation 635-208 for unfitness.  He completed 5 months and 14 days of creditable active service with 61 days of lost time.

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 (Enlisted Personnel Separations), 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.

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 have been carefully reviewed and found to be without merit.

2.  The applicant's record of indiscipline includes punishment under the provisions of Article 15, UCMJ, two court-martial convictions, 61 days of lost time. 

3.  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 or an honorable 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.




      _______ _   _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)                                         AR20090000991





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ABCMR Record of Proceedings (cont)                                         AR20090000991



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