IN THE CASE OF:	

		BOARD DATE:	       15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007443 


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 upgrade of his undesirable discharge.

2.  The applicant states that he was injured as a result of being mishandled by his sergeant when the sergeant had two Soldiers physically mishandle him (the applicant) by carrying him and causing physical damage to his lower back.  He adds that he was an only son, supporting his sick and ailing mother and father and that his father died of cancer approximately six months after his (the applicant’s) discharge.  He was physically unable to perform his duties because he experienced family hardships at the time of discharge.

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 was inducted into the Army of the United States and entered active duty on 7 March 1968.  He completed basic combat training at Fort Jackson, SC, and was subsequently reassigned to Fort Gordon, GA, for completion of advanced individual training.

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 22 May 1968, for willfully disobeying a lawful order from his company first sergeant on or about 21 May 1968.  His punishment consisted of a forfeiture of $22.00 pay for 1 month and 14 days of restriction and extra duty;

	b. on 23 May 1968, for failing to go at the time prescribed to his appointed place of duty on or about 23 May 1968.  His punishment consisted of 14 days of restriction and extra duty.  

4.  On 8 July 1968, the applicant pleaded guilty at a Special Court-Martial to one specification of being absent without leave (AWOL) during the period on or about 10 June 1968 to on or about 18 June 1968.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $60.00 per month for 6 months.  The sentence was adjudged on 8 July 1968. 

5.  On 11 July 1968, the convening authority approved the adjudged sentence; however, he reduced the forfeiture of pay to $30.00 pay per month for 6 months and suspended the 6-month confinement at hard labor for a period of 6 months.

6.  On 22 August 1968, the convening authority ordered the unexecuted portion of the sentence to confinement at hard labor for 6 months executed.

7.  On 30 August 1968, the applicant pleaded not guilty at a Special Court-Martial to one specification of willfully disobeying a lawful order from a superior commissioned officer on or about 21 August 1968 and one specification of disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 21 August 1968.  The Court found him guilty of the specification of disobeying a lawful order from a superior NCO and sentenced him to confinement at hard labor for 6 months and a forfeiture of $68.00 pay per month for 6 months.  The sentence was adjudged on 30 August 1968.

8.  On 5 September 1968, the convening authority approved the adjudged sentence; however, he reduced the forfeiture of pay to 3 months and the confinement to 3 months.  

9.  On 3 October 1968, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness with the issuance of an Undesirable Discharge Certificate.

10.  On 9 October 1968, the applicant acknowledged receipt of the separation memorandum, he consulted with legal counsel, and he was advised of the basis for the contemplated separation 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.  He waived consideration of his case by a board of officers and/or personal appearance before a board of officers, and elected not to submit any statements in his own behalf. 

11.  The applicant also acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.  He further understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could also encounter substantial prejudice in civilian life.

12.  On 9 October 1968, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation
635-212, by reason of unfitness.  The immediate commander recommended an Undesirable Discharge Certificate and further remarked that it was not considered feasible or appropriate to affect other disposition because attitude, conduct, and disciplinary record clearly indicated elimination due to unfitness was the most appropriate disposition. 

13.  On an unknown date in 1968, the applicant's intermediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.

14.  On 18 October 1968, 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.  The applicant was accordingly discharged on 28 October 1968.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged with an undesirable discharge, characterized as under other than honorable conditions.  This form further confirms that he completed a total of 5 months and 7 days of creditable active military service with 76 days of lost time.

15.  On 22 January 1982, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.  

16.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability.  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 (Personnel Separations) 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 in the applicant’s records and the applicant did not provide any substantiating evidence that shows he was undergoing family 
hardships or that he addressed the illness of his mother and father with his chain 
of command or other support channels.  Additionally, there is no evidence in the applicant’s records and he did not provide any substantiating evidence that shows he was mishandled by his sergeant or that he suffered an injury as a result of being mishandled.   Furthermore, there is no evidence that the applicant's pattern of misconduct was caused by his experiencing family hardships or being mishandled. 

3.  The evidence of record shows that the applicant had two instances of NJP, two instances of courts-martial, one instance of AWOL, and two instances of confinement.  Accordingly, his chain of command initiated elimination action against him.  His discharge was in accordance with applicable regulation and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  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.



      ___________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)                                         AR20090007443



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ABCMR Record of Proceedings (cont)                                         AR20090007443



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