DOCKET NUMBER:  AR20090003964


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 experienced family hardships at the time of discharge.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 11 October 1962.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was honorably discharged on 22 August 1965 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 23 August 1965.  The highest rank/grade he attained throughout his military service was specialist five (SP5)/E-5.  He also held MOS 16S (Fire Control Operator) and 17F (Defense Acquisition and Survival Radar Crewman).

3.  The applicant's records show he was awarded the National Defense Service Medal, the Good Conduct Medal (1st Award), and the Expert Marksmanship Qualification Badge with Rifle and Pistol Bars.  

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 6 July 1964, for leaving his appointed place of duty without authority on or about 22 June 1964.  His punishment consisted of an oral reprimand; 

	b. on 27 June 1966, for making a false official statement on or about 26 June 1966.  His punishment consisted of a forfeiture of $58.00 pay and 14 days of extra duty; and 

	c.  on 16 January 1967, for being absent without leave (AWOL) during the periods on or about 26 December 1966 to on or about 29 December 1966 and on or about 2 January 1967 to on or about 12 January 1967.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $70.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

5.  On 20 June 1967, the applicant pleaded guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 9 March 1967 through on or about 22 May 1967.  The Court sentenced him to confinement at hard labor for 4 months.  The sentence was adjudged on 20 June 1967 and approved on 22 June 1967.

6.  On 3 July 1967, the convening authority suspended the unexecuted portion of the applicant's sentence to confinement at hard labor for 4 months for a period of 3 months.

7.  On 22 April 1968, the applicant pleaded guilty at a Special Court-Martial to two specifications of being AWOL during the periods on or about 5 July 1967 through on or about 4 October 1967 and on or about 7 October 1967 through on or about 12 April 1968.  The Court sentenced him to confinement at hard labor for six months and a forfeiture of $90.00 pay for 6 months.  The sentence was adjudged and approved on 22 April 1968.
8.  On 30 April 1968, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness with the issuance of an Undesirable Discharge Certificate.

9.  On 30 April 1968, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and/or personal appearance before a board of officers, and elected not to submit any statements in his own behalf. 

10.  The applicant also acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could also encounter substantial prejudice in civilian life.

11.  On 30 April 1968, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212, by reason of unfitness.  The immediate commander recommended an Undesirable Discharge Certificate and further remarked that the applicant's discreditable past performance and his negative attitude toward the Army appeared to preclude any consideration for an unsuitable discharge and that there were no grounds warranting other disposition of this case.

12.  On 2 May 1968, the applicant's intermediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.

13.  On 8 May 1968, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 14 May 1968.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged with an undesirable discharge, characterized as under other than honorable conditions.  This form further also confirms that he completed a total of 4 years, 2 months, and 26 days of creditable active military service and had 435 days of lost time.
14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

15.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability.  It provided, in pertinent part, that 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.

16.  Army Regulation 635-200 (Personnel Separations) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he had any family hardships at the time or that his multiple instances of AWOL and/or misconduct were caused by a family hardship.  

3.  The evidence of record shows that the applicant had three instances of nonjudicial punishment, two instances of a Special Court-Martial, and multiple instances of AWOL.  Accordingly, his chain of command initiated elimination action against him.  His discharge was 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.

4.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable 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)                                         AR20090002105



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ABCMR Record of Proceedings (cont)                                         AR20090003964



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