IN THE CASE OF:	  

		BOARD DATE:	  9 April 2010

		DOCKET NUMBER:  AR20090017267 


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 to a general, under honorable conditions discharge.

2.  The applicant states he and his buddies had been drinking and when a comrade refused to give them a ride to base, they tipped his car over with the occupants still in it.  In a second incident, he was trying to stop his buddy from hitting the orderly on duty who was going to write them up for missing bed check. He states he was shipped out and discharged when all he was trying to do was to stop two guys from hitting the officer in charge that night.  He states he does not understand why he was discharged for these two incidents.  He states he came home after discharge and went to work to provide for his family.  He states he has gotten older and his life has changed physically and spiritually.  He states he was injured in Germany when he was hit by a truck.  He states he was hospitalized for two weeks due to surgery for hemorrhoids.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and 10 personal references.

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 military personnel records show he was inducted into the Army of the United States on 11 March 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 120.00 (Pioneer).

3.  On 8 August 1963, the applicant was assigned to the 10th Engineer Battalion in Germany.

4.  On 6 July 1963, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit without authority.

5.  The applicant was treated from September 1963 to November 1963 for injuries to his left leg and ankle he received when he was pinned between two trucks on 16 September 1963.  

6.  The applicant was treated for hemorrhoids on 23 March 1964.

7.  The applicant accepted NJP under Article 15, UCMJ on the following dates for the reasons specified:

* 15 April 1964 - missing bed check at 0100 hours on 5 April 1964

* 15 April 1964 - missing bed check at 2400 hours on 12 April 1964

* 3 June 1964 - absent without leave (AWOL) for approximately 8 hours

   * 11 June 1964 - breaking restriction, improper uniform, missing bed check, disrespectful to Military Police, and drunk and disorderly

8.   On 12 June 1964, the applicant was evaluated by a captain of the Medical Corps.  In an AE Form 3087 (Report of Psychiatric Evaluation), the examiner stated the applicant was alert, coherent, oriented, and cooperative during the examination.  The examiner stated the affect was appropriate, speech patterns 

were normal, thought processes were intact, and there was no indication of delusions or hallucinations.  The examiner stated that further rehabilitative efforts were not likely to succeed.  The examiner stated the applicant had a long standing behavior pattern of maladjustment and was not likely to change.  He stated because of his basic character defects and his poor intellectual endowment, the applicant probably will not be an effective Soldier.

9.  The applicant accepted NJP under Article 15, UCMJ on the following dates for the reasons specified:

* 18 July 1964 - missing bed check on 2 July 1964

* 18 July 1964 - missing bed check on 3 July 1964

* 18 July 1964 - missing bed check on 11 July 1964

* 21 September 1964 - missing bed check on 20 September 1964

10.  On 13 October 1964, the applicant was tried before a special court-martial.

	a.  The applicant pled not guilty but was found guilty of assault on a noncommissioned officer.

	b.  The applicant pled guilty and was found guilty of willfully disobeying a lawful order from a commissioned officer.

	c.  The applicant's sentence consisted of confinement at hard labor for
3 months, forfeiture of $25 per month for 3 months, and reduction to the lowest enlisted pay grade.

11.  On 20 October 1964, the convening authority approved the sentence; however, the confinement was suspended for 3 months.

12.  On 13 November 1964, the applicant accepted NJP under Article 15, UCMJ for missing bed check on 7 November 1964.

13.  The applicant's discharge processing package was not available for review.

14.  On 10 December 1964, the applicant was discharged from the service due to his involvement in frequent incidents of a discreditable nature with civil or military authorities under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge-Unfitness) and issued an Undesirable Discharge Certificate.  The applicant had served 1 year, 8 months, and 29 days of creditable active service that was characterized as under other than honorable conditions.  He had 1 day of time lost.

15.  Personal references submitted by the applicant attest to his being a good citizen who is dependable, trustworthy, of good character and well liked, and respected in his community.  They also attest to his being disabled due to the loss of a kidney and other major health problems and now needs health care.

16.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the that board's 
15-year statute of limitations.

17.  Army Regulation 635-200, in effect at the time, provided for a general, under honorable conditions discharge for an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.  A discharge under honorable conditions was authorized if an individual had been convicted of an offense by general court-martial or convicted by more than one special court-martial in the current enlistment.  However, this decision was discretionary. 

18.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

19.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR 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 his undesirable discharge should be upgraded to a general discharge.  He contends he was injured during his service and he should not have been discharged based on two incidents.

2.  The applicant's medical records show he received treatment for his left leg and ankle after being pinned between two trucks and for hemorrhoids.  However, there is no evidence either of these injuries were the cause or substantially contributing cause of his misconduct.
3.  The applicant was not discharged based on two incidents.  He was discharged based on frequent incidents of a discreditable nature with military authorities, including 10 instances of NJP and one special court-martial.

4.  Although the applicant's separation package was not available it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  A review of the applicant's record of service shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered; however, his records document no acts of valor or significant achievement.

7.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

8.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits or upgrade discharged based on the passage of time.  Granting veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care should be addressed to the Department of Veterans Affairs.  Additionally, every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

9.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general, under honorable conditions discharge.

10.  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 that 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)                                         AR20090017267



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ABCMR Record of Proceedings (cont)                                         AR20090017267



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