IN THE CASE OF:	  

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20090004588 


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 under other than honorable conditions discharge to fully honorable.

2.  The applicant states he encountered prejudice during his service in Germany.

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 25 June 1962.  He completed basic combat and advanced individual training and was awarded military occupational specialty 140.00 (Field Artillery Crewmember).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  His awards and decorations include only the Marksman Marksmanship Qualification Badge with Rifle Bars (M14).

4.  On 21 March 1963, the applicant pleaded guilty at a general court-martial to one specification of being absent without leave (AWOL) during the period on or about 8 January 1963 through on or about 15 January 1963 and one specification of wrongfully appropriating a government utility truck of a value over $50.00 on or about 8 January 1963.  The Court sentenced him to a forfeiture of $40.00 pay for 9 months, confinement at hard labor for 9 months, and reduction to private (PVT)/E-1.  The sentence was adjudged on 21 March 1963.

5.  On 5 April 1963, the convening authority approved a reduced sentence of confinement at hard labor for 6 months, a forfeiture of $40.00 pay for 6 months, and reduction to PVT/E-1.  He further ordered the record of trial forwarded to The Judge Advocate General of the Army for review.

6.  On 11 June 1963, the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months and forfeiture of $40.00 pay for 6 months was suspended for 3 months.

7.  On 12 August 1963, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for missing bed check on or about 12 August 1963.  His punishment consisted of 7 days of restriction and 7 days of extra duty.

8.  On 11 September 1963, Headquarters, Fort Riley, Fort Riley, KS, published General Court-Martial Order Number 41, which shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the unexecuted portion of the sentence to confinement at hard labor and forfeiture of pay executed.

9.  The applicant’s records also show he served in Germany from on or about 23 January 1964 to on or about 3 April 1964.

10.  The applicant's records reveal he accepted additional NJP under the provisions of the UCMJ as follows:

	a.  on 17 February 1964, for absenting himself from his unit without authority on or about 13 February 1964.  His punishment consisted of 14 days of extra duty;
	b.  on 1 March 1964, for being absent from his unit without an authorized pass on or about 29 February 1964.  His punishment consisted of 14 days of restriction and a forfeiture of $20.00 pay; and

	c.  on 5 April 1964, for disobeying a lawful order from a superior noncommissioned officer on or about 5 April 1964.  His punishment consisted of confinement for 3 days.

11.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his records contain a copy of a memorandum issued by Headquarters, Seventh Army, U.S. Army Europe, on 17 March 1964 which shows elimination proceedings in the applicant's case were approved and that the applicant would be separated from the Army under the provisions of Army Regulation 635-208 (Personnel Separations), reduced to the lowest enlisted grade, and issued an Undesirable Discharge Certificate.

12.  The applicant's records also contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows the applicant was discharged on 27 March 1964 under the provisions of Army Regulation 635-208 by reason of unfitness with an under other than honorable conditions character of service.  This form also shows the applicant completed 1 year, 1 month, and 34 days of creditable active service and had 243 days of lost time.

13.  On 7 September 1966, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

14.  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.

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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 encountered prejudice in Germany was carefully considered.  However, there is insufficient evidence that shows the applicant addressed this issue with his chain of command and/or support channels.

2.  The applicant’s record is void of the facts and facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 27 March 1964 under the provisions Army Regulation 635-208 by reason of unfitness for frequent incidents of a discreditable nature with civil or military authorities.  The applicant's record reveals a disciplinary history which includes four instances of nonjudicial punishment, multiple instances of AWOL, one instance of a general court-martial (received prior to his assignment to Germany), and at least one instance of confinement.

3.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  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.



      ____________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)                                         AR20090004588



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ABCMR Record of Proceedings (cont)                                         AR20090004588



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