IN THE CASE OF:	

		BOARD DATE:	30 July 2009  

		DOCKET NUMBER:  AR20090004731 


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 undesirable discharge to an honorable discharge.

2.  The applicant states that he was the colonel’s driver and that the colonel made inappropriate sexual advances towards him but he declined.  He adds that it was downhill and out of the door from then on.  He further adds that he needs an upgrade to qualify for medical benefits. 

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 20 December 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty 112.00 (Heavy Weapons Infantry).  He was honorably discharged on 5 May 1964 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 6 May 1964.  The highest rank he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records also show he served in Germany from on or about 26 May 1964 to 20 January 1965.  His records further show he was awarded the National Defense Service Medal.  

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

	a.  on 24 September 1964, for leaving his post as a sentinel without being properly relieved on or about 24 September 1964.  His punishment consisted of 14 days of restriction and 14 days of extra duty; 

	b.  on 25 March 1965, for misappropriating government property by driving a military truck without a trip ticket on or about 24 March 1965.  His punishment consisted of 14 days of restriction and 7 days of extra duty; and 

	c.  on 14 April 1965, for being disrespectful in deportment towards a superior noncommissioned officer on or about 12 April 1965.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $21.00 for 1 month, 14 days of restriction, and 14 days of extra duty.  

5.  On 27 April 1965, the applicant’s immediate commander initiated a Certificate of Unsuitability for Reenlistment against the applicant citing his habitual misconduct.  He was furnished a copy of this Certificate but elected not to make a statement on his own behalf.  The Certificate was ultimately approved by the approval authority on 20 May 1965. 
 
6.  On 12 August 1965, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully possessing and using amphetamines on or about April 1965.  His punishment consisted of a forfeiture of $46.00 pay, a reduction to PV2/E-2, and 30 days of extra duty.



7.  On 11 February 1966, the applicant pled not guilty at a Special Court-Martial to two specifications of leaving his appointed place of duty without authority on or about 11 and 31 December 1965, and five specifications of failing to go at the time prescribed to his appointed place of duty on or about 10 and 15 December 1965 and 3, 10, and 24 January 1966.  The Court found him guilty of all specifications and charges and sentenced him to confinement at hard labor for 
6 months, a forfeiture of $83.00 pay per month for 6 months, and a reduction to private (PVT)/E-1.  The sentence was adjudged on 11 February 1966 and approved on 26 February 1966.  However, on 22 March 1966, the sentence to confinement at hard labor in excess of 1 month and a forfeiture of pay in excess of 1 month was set aside. 

8.  On 25 July 1966, the applicant pled not guilty at a Special Court-Martial to three specifications of willfully disobeying a lawful order on or about 27 and 28 June 1966; one specification of breaking restriction on or about 3 July 1966; one specification of violating a general order by operating an unregistered passenger car on or about 3 July 1966; and one specification of being disrespectful towards his commanding officer on or about 28 June 1966.  The Court found him guilty of all specifications and charges except for disobeying a lawful order on or about 28 June 1966 and breaking restriction on or about 3 July 1966.  He was sentenced to perform hard labor for 3 months, a forfeiture of $83.00 pay for 3 months, and a reduction to PVT/E-1.  The sentence was adjudged on 25 July 1966 and approved on 27 July 1966.

9.  On 13 September 1966, the applicant pled not guilty at a Summary Court-Martial to one specification of violating a general order by entering the                5-kilometer zone of the West-East German border on or about 12 September 1966.  The Court found him guilty and sentenced him to confinement at hard labor for 1 month and a forfeiture of $70.00 pay.  The sentence was adjudged and approved on 13 September 1966.  

10.  On 13 August 1966, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation    635-212 (Personnel Separations) by reason of unfitness citing the applicant’s continuous disciplinary problems, absence without leave, and disrespectfulness towards his superiors as the bases of his recommendation.  The immediate commander further recommended an Undesirable Discharge Certificate.





11.  On 9 September 1966, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action 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.  The applicant further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined to make a statement in his own behalf.

12.  On 9 September 1966, separation action was initiated against the applicant in accordance with Army Regulation 635-212 by reason of unfitness.

13.  On 13 and 17 September 1966, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.

14.  On 17 October 1966, 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.  On 8 November 1966, the applicant was accordingly discharged from the Army.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 2 years, 8 months, and 25 days of creditable active military service and had 55 days of lost time.

15.  There is no evidence 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.

16.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  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.
17.  Army Regulation 635-200 is the basic regulation that governs 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.  

18.  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.

2.  There is no evidence that the applicant encountered sexual advances from his colonel or that he addressed this issue with his chain of command and/or support channel.  Additionally, the applicant’s misconduct occurred throughout his military service. 

3.  The applicant’s records reveal an extensive history of indiscipline and/or misconduct including four instances of nonjudicial punishment, a bar to reenlistment, and three instances of courts-martial.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with applicable regulation and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this 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.  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)                                         AR20090004731



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ABCMR Record of Proceedings (cont)                                         AR20090004731



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