IN THE CASE OF:	  

		BOARD DATE: 	         27 May 2009

		DOCKET NUMBER:  AR20090003451 


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 undesirable discharge be upgraded. 

2.  The applicant states that he was under the impression his discharge would be automatically upgraded to a general discharge after six months.

3.  The applicant provides a copy of his DD Form 214 (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 13 July 1964 for a period of 
3 years.  He successfully completed basic combat training.  While in advanced individual training (AIT), nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 3 January 1965 to 
14 January 1965.  His punishment consisted of a forfeiture of pay and restriction.  He completed AIT and was awarded military occupational specialty 71A (clerk typist).

3.  On 19 November 1965, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to E-2, restriction, and extra duty. 

4.  On 1 December 1965, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay. 

5.  On 23 February 1966, the applicant was convicted by a summary court-martial of being AWOL from 26 October 1965 to 1 November 1965.  He was sentenced to forfeit $50.00.  On 23 February 1966, the convening authority approved the sentence.

6.  On 15 May 1966, nonjudicial punishment was imposed against the applicant for being drunk in public.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

7.  On 8 June 1966, nonjudicial punishment was imposed against the applicant for being AWOL for 10 and 1/2 hours on 3 June 1966.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty. 

8.  On 8 July 1966, nonjudicial punishment was imposed against the applicant for operating a vehicle without having in his possession a drivers license and breaking restriction.  His punishment consisted of a forfeiture of pay, restriction, and extra duty. 

9.  On 23 September 1966, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 6 August 1966 to 
15 September 1966.  He was sentenced to forfeit $67.00 pay per month for 5 months and to be confined at hard labor for 5 months.  On 5 October 1966, the convening authority approved the sentence.  On 23 November 1966, the unexecuted portion of the sentence to confinement and forfeiture of pay were suspended for 3 months.  On 2 December 1966, the suspended portion of the sentence to confinement was vacated.  

10.  On 8 December 1966, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  

11.  On 12 December 1966, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

12.  On 30 January 1967, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

13.  On 3 February 1967, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 2 years and 20 days of creditable active service with 171 days lost due to AWOL and confinement.

14.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

16.  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.

17.  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.

18.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:
 
1.  A discharge upgrade is not automatic.

2.  The applicant’s record of service included six nonjudicial punishments, one summary court-martial conviction, one special court-martial conviction, and 171 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
 
4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20090003451





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ABCMR Record of Proceedings (cont)                                         AR20090003451



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