IN THE CASE OF:	

		BOARD DATE:	 25 February 2010 

		DOCKET NUMBER:  AR20090010746 


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, upgrade his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, he made a mistake two months before his expiration term of service (ETS) and prior to this he was a pretty good Soldier who got hooked up with the wrong crowd.

3.  The applicant provides no additional documentation 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 record shows he enlisted in the Regular Army (RA) on
13 February 1963.  He held and served in military occupational specialty (MOS) 111.10 (Light Weapons Infantryman).

3.  The applicant’s record documents no acts of valor or significant achievement.  

4.  The applicant's record documents a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions:

	a.  on 15 October 1963, for being absent from his company area after curfew on 13 October 1963.

	b.  on 29 October 1963, for wrongful use of a stimulant (barbiturates) and rendering himself unfit for guard duty on 20 October 1963.

	c.  on 2 June 1964, for failing to go at the time prescribed to his appointed place of duty on 17 May 1964.

	d.  on 11 December 1964, for failure to report to his proper place of duty at the prescribed time on 7 December 1964.

5.  The applicant's record also documents two special courts-martial (SPCM) convictions:

	a.  on 12 February 1965, for stealing $21.00 from a person by means of force and violence and for unlawfully striking a person on the head and body with his fists.

	b.  on 28 April 1965, for being disrespectful in language and deportment and for threatening with contempt towards his superior non-commissioned officer.

6.  On 1 June 1965, the State of Texas, 27th Judicial District Court found the applicant guilty of "burglary by breaking with intent to commit theft."  On the same day, as punishment for his crime, the applicant was given 5 years probation.  On 16 June 1965, his probation was revoked because he violated the terms and conditions of his probation and he was ordered to serve 5 years in the State Penitentiary.

7.  On 5 June 1965, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct 
(Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)), Section IV, based on a civil conviction.  The applicant was advised of his rights and the separation procedures involved.

8.  On 5 June 1965, the applicant acknowledged receipt of the notification of separation action for his civil conviction and that:

	a.  he waived a hearing before a board of officers,

	b.  he elected not to submit a written statement in his own behalf, and

	c.  he waived representation by counsel.

9.  On 28 June 1965, the brigadier general serving as the general court-martial convening authority and the authorized separation authority in the applicant's case waived board action and approved the applicant's discharge.  The commander directed the applicant be issued an Undesirable Discharge Certificate.

10.  The applicant's DD Form 214 (Report of Transfer or Discharge) shows he was discharged under other than honorable conditions on 12 July 1965, under the provisions of Army Regulation 635-206, section III, based on misconduct.  At the time he had completed 2 years and 21 days of net active service.  Item 32 (Remarks) shows he had 131 days of time lost under Title 10, U.S. Code, section 972.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  An undesirable discharge was normally considered appropriate for members separating under this provision of the regulation; however, the separation authority could issue an honorable or a general discharge if warranted by the member's overall record of service.

13.  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.

14.  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 he made a mistake 2 months before his ETS was carefully considered.  However, the applicant's record clearly demonstrates that his disciplinary problems began less than a year after he entered the Army.

2.  The applicant's record documents no acts of valor or significant achievement.  His record reveals an extensive disciplinary history that includes his acceptance of NJP on four separate occasions, his conviction by two SPCMs, and his subsequent civil conviction which led to his discharge.  As a result, it is clear his undesirable discharge accurately reflects his overall record of service which did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade at this late date.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met, his rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service.

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.  In view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090010746



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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