IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090008042 


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 general, under honorable conditions.

2.  The applicant states that if he had not been deceived he would not be making this request today.  The applicant contends that when he enlisted he was led to believe that he would not only receive military training, to include becoming a parachutist, but would be able to attend college.  Basic training taught him about regimentation and the "military way."   He thought his "AIT" was to be advanced infantry training; however, it turned out to be "cook school."  He was told to put in for a transfer at the completion of cook school.  He did, twice, but never received an answer to his request.  The applicant discovered that things really changed when he got to his first assignment.  He made several attempts to get a transfer so he could complete his education.  He made so much ado about wanting a transfer that the Soldiers in his platoon shunned him.  He tried to enroll at Fayetteville State, only to be rejected because he did not have the necessary credentials.  When he returned to his unit, he was charged with being absent without leave (AWOL), resulting in a pay deduction.  He managed to find a part time job in town as a stock clerk to make up for the loss of pay so his family would not be shorted.  It has been a long time.  He is proud to be an American and a paratrooper.  He believes that he is justified to have a discharge "under honorable conditions."

3.  The applicant provides, in support of his application, letters of support from his pastor and the voluntary service specialist at the Department of Veterans Affairs, Maryland Health Care System.
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 April 1963, the applicant, at 17 years, 10 months of age, enlisted in the Regular Army for 3 years.  He completed his initial training, to include the Basic Airborne Course.  He was awarded military occupational specialty (MOS) 940.00 (Cook).

3.  On 21 September 1963, the applicant was assigned for duty as a cook with A Troop, 17th Cavalry Regiment, 82nd Airborne Division, Fort Bragg, North Carolina. 

4.  On 18 October 1963, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL for 13 days.  The punishment included a forfeiture of $30.00 pay for 
2 months and 45 days restriction and extra duty.

5.  On 9 January 1964, the applicant was convicted by a special court-martial of AWOL (2 days) and of breaking restriction.  His sentence consisted of a forfeiture of $55.00 pay per month for 1 month and hard labor without confinement for 
1 month.

6.  On 24 January 1964, the applicant was convicted by a special court-martial of failure to go to his appointed place of duty (four specifications) and of AWOL 
(3 days).  His sentence consisted of a forfeiture of $28.00 pay per month for 
1 month and hard labor without confinement for 1 month.

7.  On 13 February 1964, the applicant was barred to reenlistment based on his habitual record of misconduct.


8.  His DA Form 24 (Service Record) shows in Section 6 (Time Lost) that the applicant was AWOL on 16 March 1964; in confinement from 25 March to 
18 April 1964; AWOL from 25 to 26 April 1964; and AWOL on 6 May 1964.

9.  On 29 June 1964, the applicant was convicted by a special court-martial of AWOL during the period from on or about 15 May to on or about 22 June 1964.  His sentence consisted of a forfeiture of $55.00 pay per month for 6 months, reduction to pay grade E-1, and confinement at hard labor for 6 months.  He served 45 days confinement.

10.  On 17 July 1964, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-208 for unfitness.  The commander stated that the applicant indicated he could not remain in the service with his domestic problems and desired to get out any way he could.  The battalion commander stated that the applicant had received one NJP, three special court-martial convictions and one summary court-martial conviction.  Numerous attempts had been made in his former and present unit to help him rehabilitate.  

11.  The applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.

12.  On 1 August 1964, the appropriate authority approved the separation action and directed issuance of DD Form 258A (Undesirable Discharge Certificate).  On 19 August 1964, the applicant was discharged accordingly.  He had completed 11 months and 26 days of creditable active duty service and had accrued 
132 days of lost time.

13.  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.

14.  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.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.   An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

15.  Army Regulation 635-200 sets forth the basic policy 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.

16.  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.

17.  The letters of support provided by the applicant essentially state that he has been a member of his church for over 14 years and a deacon for 4 years.  He has volunteered and is a member of the outreach program.  Since April 2007, the applicant has been a registered volunteer with the VA Maryland Health Care System and has accumulated 728 hours of voluntary service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that if he had not been misled by his recruiter, or had been granted a transfer, his service would have been better.  He now wants his discharge upgraded because he believes it is justified.  

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

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  

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.  The applicant’s report of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.
6.  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.

7.  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.




      _______ _   _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)                                         AR20090008042





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ABCMR Record of Proceedings (cont)                                         AR20090008042



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