IN THE CASE OF:	

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090018650 


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, upgrade of his undesirable discharge to a general under honorable conditions discharge.

2.  The applicant states, in effect, that he was involved in a fight at a military base nightclub.  He was intoxicated and should have used better judgment.  He adds that he cannot change what happened, but he is sorry that it did happen.  He would like this Board to upgrade his discharge from an undesirable discharge to a general discharge.  He further states that he is now 71 years old and is again sorry for what happened that day.  He would really appreciate everything the Board can do for him.  He has changed.  He is a registered voter and works at the Nazarene Baptist Church and he helps with the food box for the elderly, the handicapped, and the needy.

3.  The applicant does not provide any additional documents 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 9 May 1956, the applicant enlisted in the Regular Army for a period of 2 years.  He completed the required training and he was awarded military occupational specialty 130.00 (Armor Basic).

3.  On 2 August 1957, the applicant received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 2100 hours on 1 August 1957 to 0010 hours on 2 August 1957.  His imposed punishment was 14 days of extra duty.

4.  On 3 December 1957, the applicant received NJP for being AWOL from 1200 hours on 1 December 1957 to 2045 hours on 1 December 1957.  His imposed punishment was 14 days of extra duty.

5.  On 3 February 1958, the applicant received NJP for a uniform violation on 1 February 1958.  His imposed punishment was 14 days of extra duty.

6.  On 5 April 1958, the applicant was convicted by a summary court-martial for being AWOL from 0530 hours to 1950 hours on 1 April 1958.  He was sentenced to 30 days of restriction and a forfeiture of $25.00 pay.

7.  On 5 April 1958, the applicant was convicted by a special court-martial of being AWOL from 1900 hours to 2300 hours on 24 April 1958 and for assaulting a female by striking her in the face with his fist.  He was sentenced to confinement at hard labor for 1 month and a forfeiture of $55.00 pay for 3 months.

8.  The facts and circumstances pertaining to the applicant's discharge are not available for review.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) of record indicates the applicant was discharged on 2 July 1958 under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character) with a separation program number of 387 for habits - traits (misconduct).  He was issued an Undesirable Discharge Certificate.  He completed 2 years and 25 days of active military service.

9.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  Army Regulation 635-208, then in effect, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge unless the particular circumstances in a given case warranted a general or honorable discharge when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 were carefully considered and found to be insufficient in merit.

2.  The available evidence does not include a copy of the applicant's separation packet with the specific facts and circumstances surrounding his final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization for the applicant's final discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The evidence of record documents no acts of valor or significant achievement on the part of the applicant.  However, it does confirm a disciplinary history that includes his acceptance of NJP on three separate occasions and his convictions by a summary and a special court-martial.  His record clearly did not support the issuance of a general discharge or an honorable discharge by the separation authority at the time of his discharge and does not support an upgrade at this late date.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's contentions regarding his good post-service conduct and the statement submitted by the applicant truly attest to his sincere regret for his actions and eagerness to help his community since his discharge from the Army have been duly noted.  Although the applicant's good post-service conduct is admirable, regrettably, this factor alone is not sufficiently mitigating to warrant an upgrade of his discharge.

5.  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 the aforementioned requirement.

6.  Based on the foregoing, there is no basis for granting the applicant's 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)                                         AR20090018650



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ABCMR Record of Proceedings (cont)                                         AR20090018650



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