IN THE CASE OF:	

		BOARD DATE:	  2 February 2010
	
		DOCKET NUMBER:  AR20090014003 


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, in effect, upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he really did not understand what type of discharge the Army was discharging him with, that he now knows what a serious mistake he made, and that he would like to try and make up for it. 

3.  The applicant provides no documentary evidence 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 (RA) on 5 March 1957 for a period of 3 years.  On 12 August 1958, he was discharged with a general, under honorable conditions discharge under the provisions of Army Regulation 635-209 (Personnel Separations-Discharge-Inaptitude or Unsuitability), for unsuitability.

3.  Item 32 (Prior Service) on the applicant's enlistment contract, dated 19 May 1959, shows he served in the U.S. Army Reserve (USAR) from 12 December 1956 to 13 December 1958 and he was honorably discharged by reason of expiration term of service (ETS) in the grade of E-4.  He enlisted in the RA on
19 May 1959 for a period of 3 years.  He was trained in and awarded military occupational specialty (MOS) 710.00 (general clerk).

4.  On 25 February 1960, in accordance with his plea, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 31 December 1959 to 1 February 1960.  He was sentenced to confinement at hard labor for 1 month, forfeiture of $40.00 pay per month for 1 month, and reduction to the grade of E-2.  On 1 March 1970, the convening authority approved the sentence but suspended the sentence to confinement for 6 months.

5.  On 4 May 1961, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 3 March 1961 to 17 April 1961.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $40.00 pay per month for 3 months, and reduction to the grade of E-1.  On 8 May 1961, the convening authority approved the sentence.

6.  A board of officers convened on 11 July 1961 and found that the applicant "gives evidence of habits and traits of character manifested by misconduct" and recommended that he be separated from the service under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness) for unfitness and issued an undesirable discharge.  On 25 July 1961, the separation authority approved the findings and directed that the applicant be discharged with a general, under honorable conditions discharge.

7.  However, on 3 August 1961, a request for discharge under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) was initiated based on concealment of prior service.  The applicant's unit commander stated that the applicant had been discharged for unsuitability in 1958, that he enlisted on 19 May 1959 claiming 2 years of active duty service in the USAR, and that he signed documents to the effect that he had been honorably discharged from the USAR in the grade of E-4.  As a result of this erroneous information the applicant provided, he was permitted to enter the service in the grade of E-3 with 2 years of prior service.
8.  On 24 August 1961, the separation authority approved the recommendation for discharge as a result of misconduct - fraudulent entry, and directed that the applicant be furnished an undesirable discharge.

9.  Accordingly, the applicant was discharged on 25 August 1961 with an undesirable discharge under the provisions of Army Regulation 635-206,
section II for fraudulent entry.  He served a total of 3 years, 2 months, and
28 days of total active service with 166 days of lost time due to AWOL and confinement.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section II of the regulation provided for the separation of personnel for fraudulent entry into the Army.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic policy 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 record of service during his last enlistment included two special courts-martial convictions and 166 days of lost time.  In addition, he was discharged for fraudulent entry.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general, under honorable conditions discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090014003



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ABCMR Record of Proceedings (cont)                                         AR20090014003



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