IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20090003426 


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 an upgrade of his discharge.

2.  The applicant states that he was promised his undesirable discharge would be changed to an under honorable conditions discharge after 6 months.  

3.  The applicant provides a self-authored statement, dated 10 January 2009; and three character reference letters, dated on various dates, 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 record shows he enlisted in the Regular Army for a period of 3 years on 26 September 1962.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 140.00 (Field Artillery Basic).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's record also shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the First Class Gunner Marksmanship Badge with Machinegun Bar.  His record does not show any achievements or acts of recognition during his military service.

4.  On 11 February 1964, 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 7 February 1964.  His punishment consisted of 7 days of restriction, 7 days of extra duty, and a forfeiture of $20.00 pay for 1 month.

5.  On 12 November 1964, the applicant pled not guilty at a summary court-martial to two specifications of disobeying a lawful order.  He pled not guilty to disobeying a lawful order given by a noncommissioned officer (NCO) to police up his area and he pled not guilty to disobeying a lawful order given by a specialist fifth class to wash the trays (both on 3 November 1964).  The applicant was found guilty of one specification of disobeying a lawful order given by an NCO and sentenced to reduction to private (PV2)/E-2.  The sentence was adjudged and approved on 12 November 1964.

6.  On 24 November 1964, the applicant again accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully appearing in public in improper civilian attire on 2 November 1964 and for possessing an unauthorized pass on 23 November 1964.  His punishment consisted of a forfeiture of $28.00 pay, 14 days of restriction, and 14 days of extra duty.

7.  On 12 January 1965, the applicant departed Fort Sill, OK in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 10 February 1965.  He was returned to military control at Fort Sheridan, IL, on 15 February 1965. 

8.  On 31 March 1965, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period 12 January through 15 February 1965; one specification of disobeying a lawful order given by a specialist fifth 

class on 7 March 1965; one specification of wrongfully using reproachful words on 7 March 1965; one specification of unlawfully striking another Soldier on the eye with his fist on 7 March 1965; one specification of being drunk and disorderly on 7 March 1965; and one specification of breaking restriction on or about 7 March 1965.  The Court sentenced him to confinement at hard labor for 6 months and reduction to private (PV1)/E-1.  The sentence was adjudged on 31 March 1965 and approved on 7 April 1965.  

9.  On 13 April 1965, 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 offense, and recommended that he be issued an Undesirable Discharge Certificate. 

10.  On 13 April 1965, the applicant acknowledged notification of his pending separation action.  He indicated 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 further waived his right to a board of officers, and to appear before a board of officers and he declined to submit a statement on his own behalf.

11.  On 19 April 1965, the applicant’s senior commander recommended approval of the applicant’s elimination from the service in accordance with Army Regulation 635-208 with an Undesirable Discharge Certificate.  He also remarked that the applicant was an obstructive and manipulative individual who refused to work.  He displayed a negative attitude towards rehabilitative measures, and he displayed little potential for meeting Soldierly standards of honorable behavior and performance of duty.  The senior commander also stated that the applicant’s retention was not in the best interests of the Army.

12.  On 28 April 1965, the unexecuted portion of the applicant’s sentence pertaining to confinement at hard labor for 6 months was suspended for a period of 5 months, effective 30 April 1965.

13.  On 29 April 1965, 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.  On 30 April 1965, 

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.  He had completed 
2 years, 3 months, and 19 days of creditable active service, and he had 108 days of lost time.

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

15.  The applicant submitted a self-authored statement and three character witness statements as follows:

	a.  in his statement, dated 10 January 2009, the applicant states that the only problem he had during his military career was one instance of nonjudicial punishment for being late.  He adds that after he was transferred out of Germany, his troubles were caused by excessive drinking.  He originally refused to sign an undesirable discharge; however, he was told it would be upgraded within 6 months.  He also adds that since he quit drinking over 20 years ago, he went back to school and received an associate degree;

	b.  in a statement, dated 4 December 2008, the applicant’s current supervisor states that the applicant has been an exemplary employee who works steadily, readily, and accurately.  He adds that the applicant is one of the most productive of the three technicians he supervises;  

	c.  in a statement, dated 26 December 2008, the applicant’s colleague states, in effect, that the applicant is reliable, trustworthy, and that he demonstrates good leadership skills.  He also states that the applicant applies exceptional effort to do quality work; and

	d.  in an undated, statement a second colleague indicates the applicant demonstrates positive work ethics and that he has given up alcohol.

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 because he was told it would be changed to a honorable discharge after 6 months, to include the evidence that he submitted, were carefully considered.  However, the evidence is insufficient to support an upgrade of his discharge in this case.  The Army has never had a policy where a member's discharge is upgraded within 6 months of that member's discharge or due to a passage of time.

2.  The applicant's record reveals a disciplinary history which includes two instances of nonjudicial punishment, one instance of AWOL, one instance of a special court-martial, one instance of a summary court-martial, and one instance of confinement.  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 that 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, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090003426



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ABCMR Record of Proceedings (cont)                                         AR20090003426



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