IN THE CASE OF:	  

		BOARD DATE:	       30 JUNE 2009

		DOCKET NUMBER:  AR20090006088 


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 honorable.

2.  The applicant states, in effect, that he should not have been discharged under these conditions.  He was a good Soldier during the first 2 years of his service. He served 13 months in the Republic of Korea with an excellent record.  When he was assigned to Fort Myer, Virginia, for duty with the 3rd Infantry (Old Guard), he saw immediately that this was not what he was trained to do.   He could not adjust to honor guard parades and funeral duty no matter how hard he tried.  He requested a transfer several times but was denied because such a transfer would look bad on the company.  He contends that if he had been granted a transfer he could have better served his country.  He considers himself to have been a good Soldier and that his discharge is unfair.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 
DD Form 258A (Undesirable Discharge Certificate) and his separation orders.

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.  On 12 August 1963, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 36A.10 (Wireman).  

3.  On 6 January 1964, the applicant was assigned for duty as a wireman with the 3rd Battalion, 1st Cavalry Regiment, in the Republic of Korea.  

4.  On 15 April 1964, the applicant was advanced to the rank of private first class, pay grade E-3.

5.  On or about 2 February 1965, the applicant returned to the United States for assignment at Fort Myer, Virginia.

6.  On 7 March 1965, the applicant was assigned for duty as a wireman with Headquarters and Headquarters Company (HHC), 1st Battalion, 3rd Infantry Regiment.

7.  On 25 March 1965, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for 2 days.  The punishment included 7 days restriction and extra duty.

8.  On 8 May 1965, the applicant accepted NJP for AWOL (4 days).  The punishment included reduction to pay grade E-2.

9.  On 10 May 1965, the applicant was reassigned on to HHC, United States Army Garrison, Fort Myer, for duty as a telephone switchboard operator.

10.  On 22 July 1965, the applicant was convicted by special court-martial of AWOL during the period from 21 June to 22 July 1965.  His sentence consisted of a forfeiture of $55.00 pay per month for 3 months, reduction to pay grade E-1, and hard labor without confinement for 3 months.




11.  On 18 November 1965, the applicant was convicted by special court-martial of AWOL during the period from 14 September to on or about 9 November 1965; of willfully disobeying a lawful order from his superior noncommissioned officer; and of escaping from lawful confinement on or about 14 September 1965.  His sentence consisted of confinement at hard labor for 6 months.

12.  On 30 March 1966, the applicant accepted NJP for AWOL during the period from 18 to 24 March 1966.  The punishment included 7 days restriction.

13.  Except for a copy of the first endorsement, the applicant's discharge packet is missing from his military records.  However, his DD Form 214 shows that he was administratively discharged on 8 June 1966, under the provisions of Army Regulation 635-208, for unfitness.  He was issued a DD Form 258A (Undesirable Discharge).  His service was characterized as under other than honorable conditions.  He had completed 2 years, 9 months and 27 days of creditable active duty and had 224 days of lost time due to AWOL and confinement.

14.  There is no evidence showing that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provides that: "the setting of arbitrary standards, such a certain number of trials by courts-martial, as a prerequisite to administrative elimination as a test of 'effective rehabilitation' violates the concept of individual evaluation."  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.



16.  Army Regulation 635-200, 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 , if he had been granted a transfer, his service would have been better.  He now wants his discharge upgraded because he believes it is unfair.  

2.  The evidence of record shows that the applicant received three NJP's and two special courts-martial convictions.

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory. Therefore, his undesirable discharge should not be upgraded.
 
5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's 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.




      _______ _   __XXX_____   ___
               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)                                         AR20090006088





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ABCMR Record of Proceedings (cont)                                         AR20090006088



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