BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090015347 


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 honorable.

2.  The applicant states

* he would like his discharge upgraded before he dies
* he was unjustly charged
* he didn't have an opportunity to defend himself

3.  The applicant provides

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 24 July 1961 and 16 April 1962
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard of New Jersey and as a Reserve of the Army - Type of Discharge Honorable)
* Honorable Discharge Certificate

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.  Having prior service in the Army National Guard, the applicant was inducted into the Army of the United States on 4 January 1960.  He successfully completed basic combat training and advanced individual training in military occupational specialty 112.00 (heavy weapons infantryman).  On 24 July 1961, he was honorably discharged to enlist in the Regular Army.  He enlisted in the Regular Army on 25 July 1961 of a period of 3 years.

3.  On 19 December 1961, the applicant was convicted in accordance with his plea by a special court-martial of being absent without leave (AWOL) from 26 September 1961 to 5 December 1961.  He was sentenced to be confined at hard labor for 6 months and to be reduced to pay grade E-1.  On 3 January 1962, the convening authority approved the sentence.

4.  On 9 January 1962, the applicant's unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He cited the applicant was considered unfit for further military service due to his misconduct.

5.  On 1 March 1962, after consulting with counsel, the applicant waived consideration of his case by a board of officers and elected not to make a statement in his own behalf.  He also indicated that in the event an undesirable discharge were issued, he understood he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

6.  On 6 April 1962, the separation authority approved the recommendation for separation and directed that he be issued an undesirable discharge.

7.  On 9 April 1962, the unexecuted portion of the sentence to confinement was remitted effective 16 April 1962.

8.  On 16 April 1962, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He served a total of 2 years, 8 months, and 20 days of creditable active service with 202 days of lost time.

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

10.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Personnel 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.

12.  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's contentions he was unjustly charged and didn't have an opportunity to defend himself were noted.  Apparently, he is referring to the AWOL offense for which he was tried by a special court-martial in December 1961.  These contentions relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

2.  Since the applicant's record of service included one special court-martial conviction and 202 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20090015347



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ABCMR Record of Proceedings (cont)                                         AR20090015347



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