IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013397 


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 discharge.

2.  The applicant states that his discharge should be upgraded because a doctor recommended that he receive a general discharge and the post commander over-ruled it and gave him an  undesirable discharge.  He goes on to state that he is 65 years of age and the only income he receives is social security indemnity benefits of $674.00 a month beginning in August 2009.  He continues by stating that he needs medications that would be cheaper at the Department of Veterans Affairs (VA) Hospital and that he had previously been provided them in prison and cannot afford them now that he is out.

3.  The applicant provides a copy of a medication summary and a receipt for medications.

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 in Beckley, West Virginia on 8 March 1961 for a period of 3 years.  He completed his basic training at Fort Benning, Georgia and was transferred to Fort Jackson, South Carolina to undergo his advanced individual training (AIT) as a supply handler on 5 June 1961.

3.  On 1 July 1961, he went absent without leave (AWOL) and remained absent until he was apprehended by civil authorities in Ashland, Kentucky and was  returned to military control at Fort Knox, Kentucky on 11 August 1961.  

4.  On 12 September 1961, he was convicted by a special court-martial of being AWOL from 1 July to 10 August 1961, of being AWOL from 27 August to 28 August 1961, and for escaping from confinement on 27 August 1961.  He was sentenced to confinement for 6 months and a forfeiture of pay.

5.  He was transferred to Fort Chaffee, Arkansas on 19 March 1962 to continue his AIT and on 26 April 1962, he was convicted by a summary court-martial of failure to go to his place of duty and willfully disobeying a lawful order from a superior noncommissioned officer (NCO).  He was sentenced to confinement at hard labor for 1 month and a forfeiture of pay.

6.  On 5 May 1962, nonjudicial punishment was imposed against the applicant for failure to go to his place of duty and insubordination to an NCO.  His punishment consisted of extra duty.

7.  On 15 May 1962, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-208 for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He cited the applicant’s disciplinary record, his failure to respond to rehabilitation attempts, and his continuous disobedience towards superiors as the basis for his recommendation.

8.  The applicant elected to decline counsel, waived all of his rights, and elected not to submit a statement in his own behalf.

9.  On 25 May 1962, the appropriate authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged under other than honorable conditions on 31 May 1962, under the provisions of Army Regulation 635-208 for unfitness due to involvement in frequent incidents of a discreditable nature with civil and military authorities.  He had served 7 months and 17 days of total active service and had 217 days of lost time due to AWOL and confinement.

11.  A review of the applicant’s official records failed to show that any official recommended that the applicant receive a general discharge.

12.  On 19 May 1972, the applicant applied to the Army Discharge Review Board (ADRB) while he was incarcerated for an upgrade of his discharge.  On 24 July 1973, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his request. 

13.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.  

14.  Army Regulation 635-200 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’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, given his repeated absences during such a short period of service combined with his otherwise undistinguished record of service, his contentions are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  Additionally, the Board does not now nor has it ever upgraded discharges simply for the purpose of qualifying for benefits.

5.  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 the requirement.

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)                                         AR20090013397





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013397



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1