IN THE CASE OF:	  

		BOARD DATE:	       9 JUNE 2009

		DOCKET NUMBER:  AR20090001752 


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, an upgrade of his discharge.

2.  The applicant states that he was in an absent without leave (AWOL) status due to marital problems involving unfaithfulness on the part of his spouse.  He adds that prior to his discharge he was told if he accepted his discharge and remained a model citizen, his character of service could be changed to fully honorable.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 13 May 1964, 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's records show he enlisted in the Regular Army for a period of 3 years on 14 March 1961.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).  The highest rank/grade he attained during his period of military service was private (PV2)/E-2.

3.  The applicant's records also show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His records do not show any achievements or acts of recognition during his military service.

4.  On 7 September 1962, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 14 July 1962 through 9 August 1962.  The Court sentenced him to confinement at hard labor for 6 months, a forfeiture of $10.00 pay per month for 6 months, and reduction to private (PV1)/E-1.  The sentence was adjudged and approved on 7 September 1962.

5.  On 15 May 1963, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without proper authority on or about 15 May 1963.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

6.  On 29 May 1963, the applicant pled guilty at a Summary Court-Martial to one specification of breaking restriction on or about 20 May 1963.  The court sentenced him to confinement at hard labor for 1 month, reduction to PV1/E-1, and a forfeiture of $10.00 pay for 1 month.  However, on 29 May 1963, the convening authority suspended the confinement portion of the sentence until 29 June 1963.

7.  On 10 September 1963, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 17 June through 22 August 1963.  He was sentenced to confinement at hard labor for 2 months and a forfeiture of $25.00 pay per month for 4 months.  The sentence was adjudged on 10 September 1963 and approved on the same date.  However, on 25 September 1963, the convening authority ordered the applicant's sentence suspended for a period of 6 months.

8.  On 7 April 1964, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 17 December 1963 through 12 March 1964.  The court sentenced him to confinement at hard labor for 6 months.  The sentence was adjudged on 7 April 1964 and approved on 
9 April 1964.
9.  On 16 April 1964, the applicant’s immediate commander recommended that the applicant be discharged from military service under the provisions of Army Regulation 635-208 (Personnel Separations), for unfitness, citing his prior misconduct to include his courts-martial convictions and his AWOL offenses.  The recommendation was that he be issued an Undesirable Discharge Certificate. 

10.  On 16 April 1964, the applicant acknowledged that he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood that if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers, and to appear before a board of officers.  He also declined to submit a statement on his own behalf.

11.  On 23 April 1964, the interviewing officer indicated that he personally interviewed the applicant and discussed his pending separation action.  He remarked that the applicant was not amenable to rehabilitation and possessed no future potential usefulness for the service.  The interviewing officer recommended approval of the applicant’s elimination from the service in accordance with Army Regulation 635-208 with an Undesirable Discharge Certificate.

12.  On 23 April 1964, the applicant's intermediate commander also recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

13.  On 7 May 1964, the separation authority approved the applicant's elimination from the Army under the provisions of Army Regulation 635-208 and directed he be furnished an Undesirable Discharge Certificate.  

14.  On 13 May 1964, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time confirms he was discharged in accordance with Army Regulation 635-208 and issued an Undesirable Discharge Certificate.  This form further shows the applicant completed 2 years, 1 month, and 25 days of creditable active military service and he had 312 days of lost time.

15.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitation. 

16.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

17.  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. 

18.  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 contention that his discharge should be upgraded due to marital problems and because he was told it would be changed to an honorable discharge if he remained a model citizen was carefully considered; however, there insufficient evidence to support an upgrade of his discharge in this case.  The Army has never had a policy where a member's discharge is automatically upgraded due to the passage of time and/or good behavior.  The applicant also had numerous avenues that he could have pursued to obtain assistance with his personal problems to include his chain of command and the chaplain.

2.  The applicant's records reveal a disciplinary history which includes multiple instances of being AWOL, courts-martial convictions, and two instances of nonjudicial punishment.  Accordingly, his immediate commander initiated separation action against him.  The applicant's discharge was processed in accordance with applicable regulation and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.
3.  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 did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20090001752



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ABCMR Record of Proceedings (cont)                                         AR20090001752



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