IN THE CASE OF:	

		BOARD DATE:	 20 January 2010 

		DOCKET NUMBER:  AR20090018838 


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 an honorable discharge.

2.  The applicant states that at the time of his discharge he requested no less than an honorable discharge.  He also adds that he is now older, he has changed his ways, and he now needs health care.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three character reference letters 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 26 November 1963, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  He completed the required training and he was awarded military occupational specialty (MOS) 635.10 (Auto Repairman).

3.  On 4 May 1964, the applicant received nonjudicial punishment (NJP) for two specifications of failing to go at the time prescribed to his appointed place of duty. His imposed punishment was a forfeiture of $5.00 pay and 7 days of restriction and extra duty.

4.  On 20 July 1964, the applicant received NJP for missing bed check and for failing to repair for reveille.  His imposed punishment was a reduction to the rank/grade of private (PV1)/E-1 (suspended for 60 days unless sooner vacated), detention of pay of $38.00 pay, and 14 days of restriction and extra duty.

5.  On 5 October 1964, the applicant was convicted by a special court-martial (SPCM) of two specifications of disobeying a lawful order from his superior noncommissioned officer, two specifications of breaking restriction, and one specification of disobeying a lawful command from his superior commissioned officer.  He was sentenced to confinement at hard labor for 2 months and a forfeiture of $50.00 pay for 4 months.

6.  On 12 January 1965, the applicant underwent a psychiatric examination.  He was diagnosed as having an immature personality.  The applicant was psychiatrically cleared for separation from the service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) or Army Regulation 635-209 (Personnel Separations-Discharge-Inaptitude or Unsuitability).

7.  On 11 February 1965, the applicant was medically cleared for separation from the service under the provisions Army Regulation 635-208 for unfitness.

8.  The facts and circumstances pertaining to the applicant's discharge are not available for review.  The DD Form 214 of record indicates the applicant was discharged on 9 April 1965 under the provisions of Army Regulation 635-208 with a separation program number (SPN) of 28B for repeated offenses (military) including those resulting in courts-martial.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 1 month, and 21 days of active military service with 85 days of lost time.

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.  The applicant submitted three support letters attesting to his integrity, character, and eagerness to help his community.

11.  Army Regulation 635-208, then in effect, set forth the basic authority for 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.

12.  Army Regulation 635-200 sets for the general policies 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  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's contentions and the character references that were submitted in support of his case were carefully considered.  

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 two separate occasions and his conviction by an SPCM.  His record 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 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.  Although the three support letters attest to the applicant's integrity, character, and eagerness to help his community since his discharge from the Army, this does not mitigate his disciplinary offenses and unwillingness to complete his contract with the Army.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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 the aforementioned requirement.

7.  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)                                         AR20090018838



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018838



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1