IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011630 


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 an upgrade of his discharge.

2.  The applicant states that he is in the process of filing for Department of Veterans Affairs benefits and that, in effect, his discharge should be upgraded.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 29 June 1960 and 17 February 1961, 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 records show he enlisted in the Regular Army for a period of 3 years on 6 June 1958.  He completed basic combat and advanced individual training and was awarded military occupational specialty 510 (Construction Helper).  He was honorably discharged on 29 June 1960 for the purpose of immediate reenlistment and executed a 6-year reenlistment on 30 June 1960.  The highest rank/grade he attained during his period of military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Korea from on or about 15 November 1958 to on or about 14 April 1960.  His awards and decorations include the Marksman Marksmanship Qualification Badge with Rifle and Carbine Bars.

4.  On 14 September 1960, the applicant departed his Fort Sheridan, IL, unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 21 October 1960.  He was apprehended by civil authorities in Chicago, IL, and was returned to military control on 8 November 1960.

5.  On 5 January 1961, the applicant pled guilty at a special court-martial to two specifications of being AWOL during the period on or about 14 September 1960 through 8 November 1960 and on or about 8 December 1960.  The court sentenced him to a forfeiture of $70.00 pay per month for 6 months and confinement at hard labor for 6 months.  The sentence was adjudged on 5 January 1960.

6.  On 6 January 1961, the convening authority approved the applicant's sentence; however, he suspended the execution of that portion of the sentence adjudging confinement for 6 months for a period of 6 months.

7.  On 12 January 1961, the applicant's immediate commander recommended that the applicant be discharged from military service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) for unfitness, citing his prior misconduct.  The immediate commander remarked that efforts toward the applicant's rehabilitation were considered impractical and that the applicant's conduct and efficiency ratings were unsatisfactory.

8.  On 12 January 1961, the applicant acknowledged that he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood that if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

9.  On 10 February 1961, the separation authority approved the applicant's elimination from the Army under the provisions of Army Regulation 635-208 and directed he be furnished an Undesirable Discharge Certificate.  On 17 February 1961, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time confirms he was discharged in accordance with Army Regulation 635-208 with a character of service as under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further shows the applicant completed 2 years, 5 months, and 26 days of creditable active military service and he had 59 days of lost time.

10.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, 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 honorable discharge.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.

13.  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 evidence of record shows that the applicant had a disciplinary history which includes two instances of being AWOL, a court-martial conviction, and unsatisfactory conduct and efficiency ratings.  Accordingly, his immediate commander initiated separation action against him.  The applicant's discharge was processed in accordance with applicable regulations, 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.

2.  The ABCMR does not correct records for the purpose of establishing entitlement to other programs and/or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  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. His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a 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)                                         AR20090011630



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ABCMR Record of Proceedings (cont)                                         AR20090011630



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