IN THE CASE OF:	 

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013382 


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 that his undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states that he would not have signed the paper if he had been told the truth.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 13 March 1961 for a period of 3 years.  He completed infantry training and his highest rank held was private, 
E-2.
3.  His service personnel records contain a DD Form 789 (Unit Punishment Record) which shows he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on three separate occasions for disobeying a lawful order of a noncommissioned officer (NCO), having a dirty weapon, and wrongfully appropriating a civilian vest.

4.  On 17 March 1962, the applicant was convicted by a special court-martial of disobeying a lawful order from his superior NCO.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $52.00 pay for 3 months.

5.  On 19 April 1962, the applicant underwent a psychiatric examination.  He was diagnosed as having severe chronic passive-aggressive reaction manifested by repeated military offenses, inadequate educational attainment, resentment of authority, and military inefficiency.  The applicant was psychiatrically cleared for separation from the service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).

6.  On 28 July 1962, the applicant was convicted by a summary court-martial of wrongfully driving a quarter-ton vehicle and wrongfully fencing with a radio antenna with a private.  He was sentenced to perform hard labor without confinement for 30 days.

7.  On 27 August 1962, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 5 August 1962 to 6 August 1962.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $55.00 pay for 3 months.

8.  On 24 September 1962, the applicant underwent another psychiatric examination and was diagnosed with the same condition as found on 19 April 1962.

9.  On an unknown date, the applicant was notified of separation action under the provisions of Army Regulation 635-208.  He was advised of his rights.  The applicant waived counsel and did not submit statements in his own behalf.

10.  On 17 November 1962, the separation authority approved separation action without appearance before a board of officers under the provisions of Army Regulation 635-208, paragraph 3a, by reason of unfitness with an undesirable discharge.

11.  The applicant was discharged from active duty on 29 November 1962 under the provisions of Army Regulation 635-208 for unfitness with the issuance of an undesirable discharge.  He completed 1 year, 3 months, and 17 days of active military service with 153 days of lost time due to confinement and AWOL.

12.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana, an established pattern for shirking, or an established pattern showing dishonorable failure to pay just debts.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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 states that he would not have signed the paper if he had been told the truth.  However, there is no evidence of record which supports his claim.

2.  The applicant's service record shows he received three Article 15's, two special courts-martial, and one summary court-martial.  Based on this 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, he is not entitled to either a general discharge.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-208 was accomplished in compliance with applicable regulations at that time.  There is no indication of procedural errors which would tend to jeopardize his rights.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20090013382



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ABCMR Record of Proceedings (cont)                                         AR20090013382



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