BOARD DATE:	  February 18, 2010

		DOCKET NUMBER:  AR20090015601 


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, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, he had personal problems related to his marriage, the birth of his children, and the loss of those children to the State, which resulted in his losing control.  

3.  The applicant provides a self-authored affidavit and statement of facts he originally submitted to the Army Discharge Review Board (ADRB) in 1978 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's record shows he enlisted in the Regular Army and entered active duty on 19 September 1960.  He was trained in and awarded military occupational specialty (MOS) 64A (Light Truck Driver).  

3.  On 28 November 1962, the applicant was honorably discharged for the purpose of immediate reenlistment, and he reenlisted for 6 years.  His DA Form 20 (Enlisted Qualification Record) shows he was promoted to private first class (PFC) on 18 November 1961, and that this is the highest rank he attained while serving on active duty.  Item 41 (Awards and Decorations) shows that he earned the Marksman Marksmanship Qualification Badge with Rifle Bar and Driver's Badge.  His record documents no acts of valor or significant achievement.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the offenses indicated:  11 June 1963, for being absent without leave (AWOL) from 30 May to 4 June 1963; and 28 October 1964, for being AWOL from 26 to 28 October 1964. 

5.  The applicant's disciplinary history also includes the following two separate summary court-martial (SCM) convictions for the offenses indicated:  25 October 1961, for violation of Article 86 of the UCMJ by being AWOL from 13 through 
15 September 1961; and 6 June 1962, for violation of Article 134 of the UCMJ by being incapacitated for proper performance of duty due to previous indulgence in intoxicating liquor.  

6.  On 28 April 1967, the applicant appeared in Chittenden District Court, Burlington, Vermont, and pled guilty to the charge of operating a motor vehicle without the owner's permission.  He was found guilty and sentenced to 35 days in the county jail.  

7.  On 11 May 1967, the applicant was notified by his commander that in view of his civil confinement, the Army began elimination proceedings on him by means of board action under the provisions of Army Regulation 635-206 and that it was recommended the applicant receive a UD.  

8.  On 22 May 1967, having been advised of the basis for the contemplated separation, its effects, and of the rights available to him, the applicant elected to waive the following rights:  consideration of his case by a board of officers; personal appearance before a board of officers; and representation by counsel.  He further elected not to submit a statement in his own behalf. 


9.  On 1 June 1967, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-206, by reason of civil conviction and directed the applicant receive a UD.  On 5 June 1967, the applicant was discharged accordingly.

10.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of Army Regulation 635-206, by reason of civil conviction and that he received a UD.  It further shows that at the time of his discharge he had completed a total of 3 years, 11 months, and 26 days of creditable active military service, and he had accrued 991 days of time lost due to being AWOL and in confinement.  

11.  The ADRB scheduled the applicant for a personal appearance hearing in Boston, Massachusetts on 17 October 1979; however, on 15 October 1979, counsel for the applicant withdrew his application. 

12.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A 
UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an HD or general discharge (GD), under honorable conditions if it were warranted based on the member's record of service.  

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.  Paragraph 3-7a provides that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 contention that his UD should be upgraded because he was suffering from personal and marital problems at the time of his discharge was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record confirms the applicant's separation processing based on his civil conviction was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The evidence of record further confirms the applicant had an extensive disciplinary history that included his acceptance of NJP on two separate occasions, two SCM convictions, and his accrual of 991 days of time lost due to being in confinement and AWOL.  As a result, his overall record of service clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge and does not support an upgrade of his discharge at this late date. 

4.  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 this 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)                                         AR20090015601



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ABCMR Record of Proceedings (cont)                                         AR20090015601



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