IN THE CASE OF:	

		BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090016932 


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 upgrade of his undesirable discharge. 

2.  The applicant states he wants his discharge upgraded so that he may receive benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional documentation 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.  On 11 July 1960, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

3.  On 4 December 1960, the applicant was assigned to C Company, 3rd Battalion, 6th Infantry Regiment, in the Federal Republic of Germany.  On 
28 October 1961, he was reassigned within the battalion to Headquarters and Headquarters Company.

4.  On 14 March 1961, the applicant was advanced to private first class, pay grade E-3. 

5.  Records show the applicant received nonjudicial punishment (NJP) (twice) under the provisions of Article 15, Uniform Code of Military Justice.  The specific dates of these punishments are not available.  The known details are:

	a.  he was absent without leave (AWOL) on 26 March 1962 and he received 14 days of extra duty; and

	b.  he was AWOL from 0315 to 1045 hours on 1 January 1963 and he received 14 days of extra duty.

6.  On 1 May 1962, the applicant was convicted by a special court-martial of being AWOL and incapacitation due to intoxication.  His sentence consisted of a forfeiture of $55.00 pay for 6 months, confinement at hard labor for 6 months, and reduction to pay grade E-1.  On 28 May 1962, the unexecuted portion of his confinement was suspended.  He served 52 days in confinement from 6 April to 27 May 1962.

7.  On 17 January 1963, the applicant was convicted by a summary court-martial of being AWOL.  His sentence consisted of a forfeiture of $50.00 pay for 1 month and confinement at hard labor for 1 month.  He served 24 days in confinement.

8.  On 12 April 1963, the applicant was convicted by a summary court-martial of being AWOL (two specifications).  His sentence consisted of a forfeiture of $70.00 pay for 1 month and confinement at hard labor for 1 month.  He served 
7 days in pre-trial confinement followed by 27 additional days in confinement.

9.  On 28 June 1963, the applicant was convicted by a summary court-martial of being AWOL.  His sentence consisted of a forfeiture of $10.00 pay for 1 month and confinement at hard labor for 1 month.  He served 14 days in pre-trial confinement followed by 13 additional days in confinement.

10.  The applicant's discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was administratively discharged on 22 July 1963, under the provisions of Army Regulation 600-208 (Personnel Separations - Unfitness).  He was assigned separation program number (SPN) 28B indicating he was discharged due to unfitness (frequent involvement of a discreditable nature with civil or military authorities) and issued a DD Form 258A (Undesirable Discharge Certificate).  He completed 2 years, 7 months and 25 days of creditable active service and he had 139 days of lost time due to being AWOL and in confinement.  

11.  On 17 March 1964, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.

12.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned when reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities.   An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

13.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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 (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 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.



15.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so that he may receive VA benefits.

2.  The evidence of record shows the applicant received two NJP's, one special court-martial conviction, and three summary courts-martial convictions.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant's desire to obtain veterans medical benefits is not justification for upgrading his discharge.

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.











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)                                         AR20090016932



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ABCMR Record of Proceedings (cont)                                         AR20090016932



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