IN THE CASE OF: 

		BOARD DATE: 	        18 June 2009

		DOCKET NUMBER:  AR20090003583 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by deleting the remarks in block 18 "DISCHARGE UPGRADED ON 5 NOV 79 FOLLOWING APPLICATION OF 4 JUN 78" and replaced with the remark "HONORABLE DISCHARGE."

2.  The applicant states that he desires the remark "DISCHARGE UPGRADED ON 5 NOV 79 FOLLOWING APPLICATION OF 4 JUN 78" be replaced with the remark "HONORABLE DISCHARGE" because it is very hard to present his DD Form 214 to an employer for a job.

3.  The applicant provides a copy of his DD Form 214.

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 (RA) on 15 June 1955 for a period of 3 years.  He completed his training as a quartermaster maintenance specialist and on 18 January 1957, while serving in Germany, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 19 January 1957 for a period of 3 years.

3.  During the period 19 September 1958 through 16 September 1959, he was convicted by four summary courts-martial of offenses ranging from failure to obey a lawful order, breaking restriction, two periods of being absent without authority (AWOL), and failure to go at the time prescribed to his place of duty.  On 16 June 1959, nonjudicial punishment was imposed against him for failure to go to his place of duty.

4.  On 24 September 1959, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharges – Unfitness) for unfitness due to shirking, as evidenced by his frequent involvement in incidents of a discreditable nature with civil and military authorities.  The commander cited the applicant's disciplinary records and his recent arrest in Richmond, Virginia by civil authorities for disorderly conduct as the basis for his recommendation.  The applicant waived all of his rights and elected not to submit a statement in his own behalf. 

5.  The appropriate authority (a major general) approved the recommendation for discharge on 12 November 1959 and directed that he be furnished an Undesirable Discharge Certificate.  Accordingly, he was discharged under other than honorable conditions on 18 November 1959, under the provisions of Army Regulation 635-208, for unfitness.  He had served 4 years, 4 months, and 27 days of total active service and had 8 days of lost time due to AWOL. 

6.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and was granted a personal appearance before the ADRB Travel Panel in St. Petersburg, Florida on 25 October 1979.

7.  After reviewing all of the evidence and testimony, the ADRB determined that while his discharge was proper, it was not equitable when compared to his 4 1/2 years of service and the nature of his indisciplines.  The ADRB determined that based on his exemplary post-service conduct, the applicant's discharge should be upgraded to a fully honorable discharge based on misconduct - established pattern for shirking.

8.  The ADRB approved his request for an upgrade of his discharge on 5 November 1979 and a new DD Form 214 was issued to reflect that his discharge had been upgraded to a fully honorable discharge based on his application.

9.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.  That regulation was subsequently incorporated into Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct.

10.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, shirking and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  At the time of the applicant's discharge upgrade and presently in effect the regulation states that for block 18, use this block for HQDA mandatory requirements when a separate block is not available.  It further states that for a Soldier who has their service characterization upgraded, enter "SERVICE CHARACTERIZATION UPGRADED ON (date) FOLLOWING APPLICATION DATED (date)."

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

2.  Notwithstanding the actions by the ADRB to upgrade his discharge to fully honorable, 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.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service.
4.  The discharge upgrade annotation on the applicant's DD Form 214 was correctly prepared in accordance with the applicable regulation to reflect the action by the ADRB that upgraded his discharge.  The applicant should also be aware that his discharge upgrade to "honorable" is appropriately reflected in block 24 (Character of Service) of his DD Form 214.

5.  Accordingly, the applicant has failed to show through the evidence of record and the evidence submitted with his application that his new DD Form 214 is in error or constitutes an injustice.  Therefore, lacking such evidence there appears to be no basis to grant his request.

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)                                         AR20090003583



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ABCMR Record of Proceedings (cont)                                         AR20090003583



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