BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013268 


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 under other than honorable conditions discharge to a general under honorable conditions discharge.

2.  The applicant states that he does not believe the record is in error per se, but he is older now and realizes the errors he made in the past.  He needs his discharge upgraded to be able to apply for Department of Veterans Affairs' benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 5 October 1966, in support of his request.

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 was inducted into the Army of the United States and entered active duty on 17 November 1961.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 711.2 (Clerk Typist).  He was honorably discharged on 8 March 1962 for the purpose of immediate enlistment in the Regular Army and executed a 3-year enlistment on 9 March 1962.

3.  He was again honorably discharged on 26 October 1964 for the purpose of immediate reenlistment and executed a 6-year reenlistment on 27 October 1964. 
He was trained in and awarded MOS 74B (Card and Tape Recorder) and attained the rank/grade of specialist four/E-4.

4.  The applicant's records also show he served in Germany from on or about 4 August 1963 to 15 May 1965.  His records further show he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  On 23 February 1965, the applicant's immediate commander initiated a Certificate of Unsuitability for Reenlistment against the applicant.  He remarked that he found the applicant lacking in abilities and aptitude and required frequent or continued special instructions or supervision.  Those habits often required corrective disciplinary action in conjunction with numerous letters of indebtedness.  He also remarked that he had counseled the applicant on numerous occasions and advised him of the adverse consequences of his actions to no avail.  The applicant was furnished with a copy of this certificate and elected to make a statement on his own behalf.  The certificate was ultimately approved by the approval authority on 23 March1965.

6.  The applicant's records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 3 May 1965, for failing to go at the time prescribed to his appointed place of duty on or about 2 May 1965.  His punishment consisted of 14 days of extra duty; and

	b.  on 21 July 1965, for being absent from his prescribed appointed place of duty on or about 19 July 1965.  His punishment consisted of an oral reprimand.

7.  On 2 August 1966, the applicant pled guilty at a general court-martial to one specification of being absent without leave (AWOL) during the period on or about 3 May 1966 through on or about 7 May 1966, and eight specifications of writing bad checks with intent to defraud and for the procurement of various items on divers occasions in March and April 1966.  The court sentenced him to a reduction to private first class/E-3 and a forfeiture of $24.00 pay per month for 6 months.  The sentence was adjudged on 2 August 1966 and was approved on 22 August 1966.

8.  On 9 September 1966, the applicant's immediate commander initiated separation action against the applicant in accordance with Army Regulation 
635-212 (Personnel Separations) by reason of unfitness citing the applicant's inability to conform to the standards necessary, continuous disciplinary problems, AWOL, and disrespectfulness towards his superiors as the bases of his recommendation.  He further cites the specific reasons for the recommendation as the applicant's bar to reenlistment, instances of NJP, his numerous letters of indebtedness, failure to provide support to his dependents, AWOL, breaking restriction, false statements, and one instance of civilian confinement for assaulting his spouse.

9.  On 9 and 12 September 1966, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  The applicant further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined to make a statement in his own behalf.

10.  On 12 September 1966, separation action was initiated against the applicant in accordance with Army Regulation 635-212 by reason of unfitness.  The immediate commander chronicled multiple counseling and/or rehabilitation undertaken in an attempt to rehabilitate the applicant and listed his history of AWOL, bad checks, false statements, lack of dependent support, civilian confinement, forgery of signature on checks, and various other infractions.  The immediate commander further recommended a General Discharge Certificate.

11.  On 14 September 1966, the applicant's intermediate commander recommended approval of the applicant's elimination from the service by reason of unfitness with the issuance of an Undesirable Discharge Certificate.

12.  On 3 October 1966, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  On 5 October 1966, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-212 with a character of service of under other than honorable conditions and was issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 4 years, 10 months, and 8 days of creditable active military service and had 12 days of lost time.

13.  On 18 December 1980, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

14.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that 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 an honorable discharge.

15.  Army Regulation 635-200 is the basic regulation that governs 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.

2.  The applicant's records reveal an extensive history of indiscipline and/or misconduct including two instances of NJP, a bar to reenlistment, and one instance of a general court-martial.  Accordingly, his chain of command initiated separation action against him by reason of unfitness.  The applicant's discharge was in accordance with the applicable regulation, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

4.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable 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)                                         AR20090013268



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013268



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1