IN THE CASE OF:	  

		BOARD DATE:	       11 AUGUST 2009

		DOCKET NUMBER:  AR20090006916 


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 (UD) be upgraded.

2.  The applicant states, in effect, a sergeant gave him a hard time due to a tattoo he had.  He also claims he did not fully understand the ramifications of receiving a UD and thought he was getting out because he could not adjust to military life. 

3.  The applicant provides an DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.

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 military record shows that he enlisted in the Regular Army and entered active duty on 26 February 1959.  He completed basic combat training and advanced individual training (AIT) at Fort Dix, New Jersey.  Upon completion of AIT, he was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

3.  The applicant's DA Form 24 (Service Record) shows he was promoted to private/E-2 on 26 June 1959, and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to private/E-1 (PV1) on 21 October 1959.  Section 6 (Time Lost) shows that during his active duty tenure he accrued 58 days of time lost due to being absent without leave (AWOL) and in confinement on five separate occasions.  Section 9 (Medals, Decorations and Citations) shows that he earned no awards during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  The applicant's military personnel records jacket contains a 
DA Form 26 (Record of Court Martial Conviction), which shows that on 21 October 1959 a special court-martial convicted him of two specifications of violating article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 24 August through 3 September 1969 and again from 
7 September through 2 October 1969.  The approved sentence was confinement at hard labor for 6 months, forfeiture of $55.00 pay per month for 6 months, and reduction to PV1. 

5.  On 3 December 1959, the applicant underwent a psychiatric evaluation that diagnosed his passive aggressive reaction manifested by impulsive acting out, poor judgment, breaches of military and civilian regulations, and difficulty with authority.  He was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right.  The evaluation found the applicant free of both mental and physical defects and recommended he appear before a board of officers for consideration for separation under the provisions of Army Regulation 635-208.

6.  On 3 December 1959, the applicant acknowledged receipt of his unit commander's recommendation that he be discharged from the Army under the provisions of Army Regulation 635-208.  The commander cited the repeated petty offenses committed by the applicant as the basis for his action and recommended that the applicant receive a UD.  The applicant waived his right to a hearing before a board of officers and indicated that he was offered military counsel, but waived his right to counsel.  The applicant also elected not to submit statement in his own behalf.

7.  On 31 December 1959, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-208 and directed that 
he receive a UD.  On 13 January 1960, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time shows he completed a total of 8 months and 20 days of creditable active military service and that he accrued 58 days of time lost due to AWOL and confinement.

8.  On 29 June 1981, the Army Discharge Review Board, after carefully considering the applicant’s case, concluded that his discharge was proper and equitable and it voted to deny his request to upgrade his discharge.

9.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  It provided for the separation of members based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  The separation authority could authorize the issue of a general under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separated under this regulatory provision. 

10.  Army Regulation 635-200 governs the policies and procedures 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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 UD should be upgraded was carefully considered.  However, the evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant's record reveals a disciplinary history that includes a 
court-martial conviction and his accrual of 58 days of time lost due to being AWOL and in confinement on five separate occasions.  As a result, his record was not sufficiently meritorious for the separation authority to support the issue of an HD or GD at the time of his discharge, nor is it sufficiently meritorious to support an upgrade of his discharge at this late date.  

3.  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 this requirement.

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)                                         AR20090006916



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ABCMR Record of Proceedings (cont)                                         AR20090006916



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