DOCKET NUMBER:  AR20090003499 


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 that his undesirable discharge be upgraded to an honorable or general under honorable conditions discharge.  

2.  The applicant states that he has no criminal record or history.  He states he is a patriotic American and believes in his country and his country's way of life.  He feels that he was unfairly dealt with and was not given any rehabilitation.  He also states that he can still correct any defects with counseling and treatment from the Department of Veterans Affairs (VA).  He continues to state that he was a young man who served his country with honorable intentions and who needed positive reinforcement and guidance from leadership.  He states that this was a time of unjust racism and prejudice.  He contends that he was not given any medical or psychological treatment prior to his separation.  When he was being processed at Fort Dix, NJ, he was told to submit an appeal at a later date.  He felt that he was being mistreated and quickly pushed out of the U.S. Army.  

3.  The applicant provides no additional documents 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 was inducted into the Army of the United States on 20 October 1958.  He completed training as a light weapons infantryman.  His highest rank held was private first class, pay grade E-3.

3.  His service personnel records contain a DD Form 789 (Unit Punishment Record) which shows he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for missing bed check on 13 September 1959 and for being absent without leave (AWOL) from 0120 hours to 0300 hours on 27 December 1959.

4.  On 8 February 1960, the applicant was convicted by a summary court-martial of exposing himself in an indecent manner to public view.  He was sentenced to forfeiture of $50.00 pay for one month and restriction to barracks for one month. 

5.  His service personnel records contain another DD Form 789 which shows he received NJP under Article 15, UCMJ for being downtown without a pass in Germany on 19 March 1960 and for being AWOL from his platoon area on 8 June 1960.

6.  On 25 June 1960, the applicant underwent a psychiatric examination.  He was diagnosed as having no psychiatric disorder.  The applicant was psychiatrically cleared for separation from the service under the provisions of Army Regulation 635-208.

7.  On 8 July 1960, the applicant was convicted by a summary court-martial of leaving his appointed place of duty without proper authority.  He was sentenced to forfeiture of $34.00 pay for one month, reduction to recruit (RCT) 
E-1, and to perform hard labor without confinement for 30 days.

8.  A board of officers met on 17 August 1960 and recommended that the applicant be discharged from the service because of unfitness with an undesirable discharge.  The appropriate approving authority approved the findings and recommendations of the board of officers on 31 August 1960.

9.  The applicant was discharged from active duty on 23 September 1960 under the provisions of Army Regulation 635-208 with issuance of an undesirable discharge.  He completed 1 year, 11 months, and 4 days of active military service.

10.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

11.  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.  

12.  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.  Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service and general aptitude.  Where a member has served faithfully and performed to the best of his or her ability, an honorable discharge certificate should be furnished.  

13.  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 claims that he was unfairly dealt with and was not given any rehabilitation.  However, there is no evidence of record which supports his claim.  

2.  The applicant's contention that he was a young man who served his country with honorable intentions and needed positive reinforcement and guidance from 


leadership is noted.  However, his service record shows he received four Article 15s and two summary courts-martial.  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 discharge or an honorable discharge.

3.  The applicant also claims that he was not given any medical or psychological treatment prior to his separation.  The evidence of record shows he underwent a psychiatric examination in June 1960 and was diagnosed as having no psychiatric disorder.  

4.  The applicant further claims that he was being mistreated and quickly pushed out of the U.S. Army.  There is also no evidence of record which supports his claim.  

5.  The applicant's administrative separation under the provisions of Army Regulation 635-208 was accomplished in compliance with applicable regulations at that time.  There is no indication of procedural errors which would tend to jeopardize his rights.

6.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20090003499





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ABCMR Record of Proceedings (cont)                                         AR20090003499



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