BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090006283 


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, in effect, that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was 17 years of age at the time and had never been away from home.  When the holidays came, he was home-sick and some of the older Soldiers were going home and showed him how to get back to New York.  However, his dad found out he was absent without leave (AWOL), immediately notified the base and drove him back to Fort Dix, NJ.  He was young and immature at the time and did not realize the mess he had gotten himself into.  He is now older and has been ashamed of his actions and would like to fix the situation.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 21 February 1963; and three character reference letters, dated on various dates, 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 record shows he was born on 18 December 1943 and was inducted into the Army of the United States at 17 years and 10 months of age and entered active duty on 25 October 1961.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 321.00 (Lineman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  On 7 December 1961, the applicant pled guilty at a special court martial to one specification of being AWOL during the period from on or about 
23 November through 1 December 1961.  The Court sentenced him to confinement at hard labor for 3 months and a forfeiture of $50.00 pay per month for 3 months.  The sentence was adjudged on 7 December 1961.  

4.  On 8 December 1961, the approving authority approved the sentence but suspended that portion of the sentence pertaining to confinement at hard labor for 3 months until 7 March 1962.  

5.  On 24 February 1962, that portion of the applicant’s suspended sentence to confinement at hard labor for 3 months was vacated and the applicant was confined at the Post Stockade, Fort Dix, NJ.

6.  On 5 March 1962, the applicant pled not guilty at a special court to one specification of being AWOL from on or about 19 February through 23 February 1962.  The court found him guilty of the charge and specification and sentenced him to confinement at hard labor for 4 months and a forfeiture of $52.00 pay per month for 4 months.  The sentence was adjudged on 5 March 1962 and was approved on 6 March 1962.

7.  On 7 June 1962, the unexecuted portion of the applicant's sentence to confinement at hard labor for 4 months was suspended until 6 July 1962.

8.  On 8 October 1962, the applicant pled not guilty at a special court martial to two specifications of being AWOL from on or about 14 September through 
21 September 1962 and from on or about 24 September through on or about

27 September 1962.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $52.00 pay per month for 6 months.  The sentence was adjudged on 8 October 1962 and approved on 12 October 1962.

9.  On 11 December 1962, the applicant's immediate commander recommended that the applicant be eliminated from the service under the provisions of Army Regulation 635-208 (Personnel Separations) by reason of unfitness and be furnished an Undesirable Discharge Certificate. 

10.  On 16 January 1963, the applicant acknowledged notification of his pending separation action.  He indicated that he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood that if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He further requested that his case be heard by a board of officers and to appear before a board of officers, but declined to submit a statement on his own behalf.  

11.  On 16 January 1963, the applicant was directed to appear before a board of officers to determine whether he should be discharged prior to the expiration of his term of service by reason of unfitness.  He subsequently waived his right to a 15-day waiting period between the date of notification of board hearing for his case and the date of the board hearing itself.

12.  On 21 January 1963, a board of officers convened at Fort Dix, NJ, to determine whether the applicant should be discharged prior to the expiration of his term of service by reason of unfitness.  After carefully considering  all the evidence in his case, the board unanimously found that the applicant was unfit for further military service and recommended that he be separated under the provisions of Army Regulation 635-208, due to unfitness with an undesirable discharge.

13.  On 15 February 1963, the convening/separation authority approved the board of officer's findings and recommendation and directed that the applicant be eliminated from the Army under the provisions of Army Regulation 635-208 with an Undesirable Discharge Certificate.  On 21 February 1963, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time confirms he was discharged in accordance with Army Regulation 635-208 and issued an Undesirable Discharge Certificate.  He had completed 6 months and 25 days of creditable active service and he had 278 days of lost time.

14.  On 27 May 1964, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

15.  The applicant submitted three character reference letters as follows:

	a.  in a character reference letter, dated 2 February 2009, the mayor of the City of Ashdown, AR, certifies that the applicant was employed by the city from March 2007 to August 2007 and that he left on his own accord.  He was a good and a dedicated employee; 

	b.  in a character reference letter, dated 2 February 2009, the Little River County Sheriff, Ashdown, AR, also states the applicant is a good citizen and a hard working individual, and that if given the opportunity, he would be successful and exceed expectations in any job; and

	c.  in a character reference letter, dated 2 February 2009, the applicant's neighbor and friend describe the applicant as a serious and dedicated individual whose reliability and integrity are above question.

16.  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.

17.  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. 

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.  The applicant's record reveals a disciplinary history which includes three instances of courts-martial and multiple instances of being AWOL.  Accordingly, his immediate commander initiated separation action against him.  The applicant's discharge was processed in accordance with applicable regulation and all requirements of law and regulation were met.  The applicant’s rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The character reference letters the applicant provided and his age at the time were carefully considered.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  Furthermore, there were many legitimate ways the applicant could have handled his home-sickness had he chosen to use them.

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 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. 
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)                                         AR20090006283



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ABCMR Record of Proceedings (cont)                                         AR20090006283



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