IN THE CASE OF:	  

		BOARD DATE:	        20 October 2009

		DOCKET NUMBER:  AR20090008906 


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 an honorable discharge. 

2.  The applicant essentially states that he initially entered the Army in April of 1958, he served a tour in Germany, he was honorably discharged and he reenlisted.  He states that he and his wife started having marital problems a few months after arriving at Fort Lewis, Washington, and his wife left and took their children with her.  He also states that he was worried because he did not know where his wife and children were and he requested emergency leave to try and locate them, but he was denied leave.  Therefore, he left Fort Lewis without permission to try and locate his family which was a mistake on his part, and that he was discharged in December 1961 with an under other than honorable conditions discharge.  

3.  The applicant provides a self-authored letter, dated 22 February 2009; a third-party letter, dated 20 February 2009, from his brother; and an undated third-party letter from a United States Army Reserve (USAR) sergeant major [who currently is a master sergeant in the USAR not by reason of disciplinary action] in support of this 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 records show that he was inducted into the Army of the United States on 1 April 1958.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 632 (Track Vehicle Mechanic).  Later he was awarded MOS 133 (Armor Intelligence Specialist).  He served in Germany from 14 October 1958 to 25 March 1960, and then he was reassigned to the U.S. Army Transfer Station at Fort Sheridan, Illinois, most likely to transition out of the Army after his 2-year service obligation.  However, on 29 March 1960, he reenlisted in the Regular Army for a period of 6 years and with an assignment to Fort Lewis, Washington.  He was assigned to Fort Lewis in May 1960, and ultimately assigned to Headquarters Company, 1st Medium Tank Battalion, 34th Armor.

3.  Between 6 March and 7 September 1961, the applicant was convicted by at least three special court-martials.  Collectively, his offenses included six counts of absenting himself without authority from his unit and one count of breaking restriction.  

4.  Although the complete facts and circumstances surrounding the applicant's discharge, i.e., his separation packet, is not available for review, his military records contain a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  This document shows the applicant was discharged under the provisions of Army Regulation 635-208 (Unfitness, Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) on 29 December 1961.  It also shows that he had 218 days of lost time between 29 March 1960 and 29 December 1961, and he was issued a DD Form 258 (Undesirable Discharge Certificate).

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



6.  In a letter, dated 2 August 1961, the commander of Headquarters Company, 1st Medium Tank Battalion, 34th Armor reported to his battalion commander that to the best of his knowledge, the applicant had no trouble or disagreement with his superior nor any domestic difficulties known to him.

7.  The applicant provided two third-party letters; one from his brother and another from a current USAR master sergeant.  The letter from the applicant's brother essentially stated that at the time, he became involved and tried to counsel both the applicant and his wife, because he was also stationed at Fort Lewis, Washington.  The applicant's brother also stated that at the same time he spoke with several of the applicant's unit leaders, but they told him that it was probably too late, the applicant was being separated from the service.  The letter from the USAR master sergeant essentially stated he has known the applicant for about 30 years, and the applicant is an outstanding citizen in their town and that he is a hard worker who always put others before himself.

8.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities, sexual perversion, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a provides, in pertinent part, 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.  

10.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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 to an honorable discharge.

2.  The applicant's contention that marital problems were behind the offenses which led to his discharge was noted.  However, based upon his company commander's 2 August 1961 letter to his battalion commander, he was not aware of any domestic difficulties.  As a result, it appears that the applicant failed to request assistance from his chain of command regarding any family issues he may have been experiencing at the time.  This fact, however, is not the fault of his chain of command, and the applicant knew or he should have known that repeatedly leaving his unit in an absent without leave status would jeopardize the characterization of his service.

3.  The third-party letters of support provided by the applicant were also carefully considered.

4.  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.

5.  Although the complete facts and circumstances pertaining to the applicant’s discharge are not in his military records, it is clear that the applicant was discharged under the provisions of Army Regulation 635-208 due to frequent incidents of a discreditable nature with military authorities as evidenced by his multiple offenses of being absence without leave.  As he did not provide any evidence which shows any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  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, he is not entitled to either an honorable or general 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.



      _______ _   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)                                         AR20090008906



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ABCMR Record of Proceedings (cont)                                         AR20090008906



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