IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017759 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he was an outstanding Soldier until he had an accident.  He was struggling with emotions and unable to think rationally.  He now asks for clemency.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 15 June 1966 and 26 January 1964; a copy of his DA Form 20 (Enlisted Qualification Record); a copy of his DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction); a copy of a self-authored summary of his military service; a copy of an undated letter of support from his wife; and a copy of a character reference letter, dated 18 May 2009, from a county sheriff, in support of his request.

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 was inducted into the Army of the United States and entered active duty on 5 November 1962.  He held military occupational specialty 111.00 (Light Weapons Infantryman) and served in Korea from March 1963 to March 1964.  He was honorably discharged on 26 January 1964 for the purpose of immediate reenlistment. 

3.  He executed a 4-year reenlistment on 27 January 1964 and served in various assignments within continental United States.  He was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-1) and the Marksman Marksmanship Badge with Machinegun Bar. 

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 4 January 1964, in Korea, for speeding on or about 17 December 1963.  His punishment consisted of a forfeiture of $13.00 pay, 14 days of restriction, and 14 days of extra duty.

	b.  On 29 September 1964, at Fort Campbell, KY, for receiving a traffic ticket for operating a vehicle without a permit on or about 3 September 1964.  His punishment consisted of 10 days of restriction and 10 days of extra duty.

	c.  On 23 April 1965, at Fort Gordon, GA, for disobeying a lawful order on or about 25 March 1965.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

5.  On 22 July 1965, at Fort Gordon, GA, he pled guilty at a special court-martial to two specifications of being absent without leave (AWOL) from on or about 6 June 1965 through on or about 8 June 1965 and on or about 9 June 1965 through on or about 19 June 1965.  The court sentenced him to a forfeiture of $50.00 pay per month for 6 months and a reduction to private.  The convening authority approved a lesser sentence of a forfeiture of $50.00 pay per month for 3 months and a reduction, on 23 July 1965.

6.  On 12 April 1966, at Fort Meade, MD, he pled guilty at a special court-martial to two specifications of being AWOL from on or about 7 August 1965 through on or about 30 December 1965 and on or about 10 January 1966 through on or about 13 March 1966.  The court sentenced him to a confinement at hard labor for 6 months and a forfeiture of $83.00 pay per month for 6 months.  The convening authority approved his sentence on 22 April 1966.  However, on 15 June 1966, the unexecuted portion of his sentence was remitted.  

7.  On 18 April 1966, his immediate commander notified him of his intent to recommend separation action against him in accordance with Army Regulation 635-200 (Personnel Separations) by reason of unfitness.  A copy of his notification is not available for review with this case.

8.  On 18 April 1966, he acknowledged notification of his pending separation action.  He indicated that he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood that if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He further waived his right to a board of officers, and to appear before a board of officers and he declined to submit a statement on his own behalf.

9.  On 30 April 1966, he underwent a psychiatric evaluation during which he indicated that he desired to be discharged.  There was no indication that he suffered from any psychiatric problems and was therefore cleared for administrative separation.

10.  On 19 May 1966, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-208 by reason of unfitness.  He remarked that his lack of motivation for continued service coupled with his inability to become a satisfactory Soldier warranted his elimination from the Army.  

11.  The separation authority's approval memorandum is not available for review with this case; however, his records contain the following documents:

	a.  Special Orders Number 114, issued by Headquarters, Fort Meade, MD, on 13 June 1966 directing his discharge, effective 15 June 1966, in accordance with Army Regulation 635-208 with an under other than honorable conditions character of service and furnished an Undesirable Discharge Certificate.

	b.  A properly constituted DD Form 214 that confirms he was discharged on 15 June 1966 in accordance with Army Regulation 635-208 by reason of unfitness and issued an Undesirable Discharge Certificate.  This form also shows he had completed a total of 2 years, 8 months, and 1 day of creditable active service, and he had 340 days of lost time.

12.  There is no indication that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

13.  He submitted the following documents:

	a.  A statement, dated 18 May 2009, from a county sheriff who states that he has known him for a number of years and has personally observed his deep-rooted compassion for the community.  

	b.  An undated statement from his mother wherein she states that most of the paperwork, including letters and newspaper clippings, were lost during Hurricane Katrina.

	c.  A self-authored summary of his military service.

14.  Army Regulation 635-208, in effect at the time, set forth the policy for the administrative separation of enlisted personnel for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

15.  Army Regulation 635-200, 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. 

16.  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 contends that his discharge should be upgraded.  
2.  His records reveal a disciplinary history throughout his entire military service which includes three instances of NJP, two instances of special courts-martial, and multiple instances of AWOL.  Accordingly, his immediate commander initiated separation action against him.  His discharge was processed in accordance with applicable regulation and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He did not submit evidence that would satisfy that requirement.  

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to grant him the 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)                                         AR20090017759



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ABCMR Record of Proceedings (cont)                                         AR20090017759



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