BOARD DATE:	  17 November 2009 

		DOCKET NUMBER:  AR20090011354 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was 17 years old when he entered the U.S. Army and that he had a bad temper and a smart mouth.  He states he was a good Soldier and that he enjoyed the Army except for when he was in garrison.  He states he had difficulty adjusting to people who would "get in [his] face."  He states he was court-martialed and then sent overseas.  In his new unit, he was sent to see a psychiatrist and the appointment did not go well.  Shortly after this appointment, he was discharged.  He states that 35 years ago he requested assistance from his local Veterans Administration and he thought that his discharge had been upgraded.

3.  The applicant provides a personal statement 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 was born on 11 May 1945.  He was 17 years old when he enlisted and his parents signed a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) consenting to his enlistment.

3.  The applicant enlisted in the Regular Army on 18 May 1962.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained was private first class/pay grade E-3.

4.  On 11 February 1963, the applicant was assigned to Company B, 1st Airborne Battalion, 50th Infantry Regiment, at Fort Hood, TX.

5.  On 27 August 1963, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 13 May 1963 to 16 July 1963.  The applicant's punishment consisted of hard labor without confinement for 3 months, forfeiture of $45.00 pay per month for 4 months, and reduction to the grade of private/pay grade E-1.

6.  On 23 October 1963, the applicant was given a separation physical examination and found to be medically qualified for separation.

7.  The applicant's separation processing package was not available for the Board's review.

8.  The applicant was discharged and issued an Undesirable Discharge Certificate on 12 November 1963.  Item 11c (Reason and Authority) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged under the provisions of Army Regulation 635-208 (Unfitness) and by order of the commanding general of the U.S. Army Training Center, Infantry and Fort Ord, CA.  He had 1 year, 3 months, and 19 days of active service with 67 days of lost time.

9.  There is no indication in the available record that shows the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

10.  Army Regulation 635-208 , then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included repeated petty offenses/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.

11.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant may have been only 17 years old when he enlisted; however, he successfully completed both his basic combat training and advanced individual training and he should have known what the Army’s standards of conduct were.

2.  A review of the applicant's record of service, which included conviction by special court-martial, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He also acknowledged in his personal statement that when he was 17  years old he had difficulty "when someone would get in my face" and that he had a temper and bad mouth, too.


3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the available facts of the case.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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 that requirement.

5.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's undesirable 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)                                         AR20090011354



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ABCMR Record of Proceedings (cont)                                         AR20090011354



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