IN THE CASE OF:	  

		BOARD DATE:	  	  27 May 2009

		DOCKET NUMBER:  AR20090001544 


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, that he believes what he did was necessary to protect his mother and he should have received an "other under honorable discharge" (correctly known as a general discharge under honorable conditions).  
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 29 January 1962 for a period of 3 years.  He completed the required training and was awarded military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was private (E-1).

3.  The applicant's record contains a copy of a DD Form 493 (Extract of Military Records of Previous Convictions) dated 3 January 1963 which shows that the applicant was convicted by a summary court-martial (SCM) of being absent without leave (AWOL) from 20 April 1962 to 14 May 1962 and from 16 May 1962 through 
18 June 1962.  His sentence consisted of hard labor with confinement for 
1 month and a forfeiture of $55,00.  The confinement was suspended.

4.  The DD Form 493 also shows that the applicant was convicted by a special court-martial (SPCM) of being AWOL from 27 July through 6 August 1962, from 
7 August through 11 August 1962 and from 17 August 1962 through 
29 November 1962.  His sentence consisted of hard labor with confinement for 
6 months, forfeiture of $52.00 pay per month for 6 months, and a reduction to private (E-1). 

5.  On 11 December 1962, a Mental Status Evaluation and a physical examination cleared the applicant for separation.

6.  On 4 January 1963, 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. 

7.  On the same day, 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. 

8.  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 his discharge under other than honorable conditions. 

9.  On 11 January 1963, 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, SPN 28B.  On 14 January 1963, the applicant was discharged with an undesirable discharge and a characterization of service as under other than honorable conditions.  He completed 3 months and 5 days of creditable active service and 254 days of lost time.  

10.  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."

11.  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.

12  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 warrant an undesirable discharge was normally issued. 

13.  Army Regulation 635-200, 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.

14.  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.  The evidence of record shows that the applicant was tried and convicted by one SCM and one SPCM for three periods of AWOL.

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.  Therefore, he is not entitled to an honorable or general discharge.

4.  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.  

5.  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 Board determined that 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)                                         AR20090001544



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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