IN THE CASE OF:	  

		BOARD DATE:	 20 May 2010 

		DOCKET NUMBER:  AR20090018844 


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 his undesirable discharge be upgraded.

2.  The applicant states his discharge is unjust because he served a term of service in the Army for 3 years. 

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) 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.  The applicant enlisted in the Regular Army on 20 June 1961 for a period of 
3 years.  He successfully completed basic combat training and advanced individual training and he was awarded military occupational specialty (MOS) 910.00 (medical corpsman) and later MOS 911.00 (medical specialist).  

3.  On 6 April 1962, the applicant was convicted by a summary court-martial of failing to obey a lawful order.  He was sentenced to forfeit $50.00 and to be restricted to the limits of the battery area for 14 days.  On 9 April 1962, the convening authority approved only so much of the sentence as provided for forfeiture of $25.00 and restriction for 14 days.

4.  On 26 June 1962, the applicant was convicted by a summary court-martial of disobeying a lawful order and breaking restriction.  He was sentenced to forfeit $25.00, to perform hard labor for 30 days, and to be reduced to pay grade E-1.  On 26 June 1962, the convening authority approved the sentence.

5.  On 18 July 1962, the applicant was convicted by a summary court-martial of two specifications of failing to go at the time prescribed to his appointed place of duty and one specification of leaving his appointed place of duty without authority.  He was sentenced to be confined at hard labor for 30 days and to forfeit $25.00.  On 19 July 1962, the convening authority approved the sentence.

6.  On 9 April 1963, nonjudicial punishment was imposed against the applicant for appearing for a regularly scheduled weekly inspection with numerous discrepancies with his weapon, clothing, and equipment.  His punishment consisted of a forfeiture of pay and extra duty.   

7.  On 27 April 1963, the applicant was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty.  He was sentenced to be reduced to E-1, to be confined at hard labor for 1 month, and to forfeit $60.00 pay per month for one month.  On 27 April 1963, the convening authority approved the sentence.  On 9 May 1963, so much of the approved sentence in excess of confinement at hard labor for 1 month, forfeiture of $55.00 per month for 1 month, and reduction to E-1 was set aside.  All right, privileges, and property of which deprived were restored. 

8.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the Army Discharge Review Board (ADRB) proceedings indicate on 16 May 1963 the applicant's unit commander recommended a board of officers be convened to determine if the applicant should be discharged prior to completion of his service obligation because of frequent breaches of conduct, discipline, poor performance, irresponsibility, and lack of regard for orders by officers and senior noncommissioned officers.  The applicant appeared before a board of officers on 20 June 1963.  The board recommended the applicant be separated for unfitness due to frequent incidents of discreditable nature with civil or military authorities and issued an undesirable discharge.  On 2 July 1963, the separation authority approved the recommendation and directed that the applicant be discharged with an undesirable discharge.

9.  Discharge orders and the applicant's DD Form 214 show he was discharged with an undesirable discharge on 17 July 1963 under the provisions of Army Regulation 635-208 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He served a total of 1 year, 11 months, and 10 days of creditable active service with 48 days of lost time.

10.  On 15 December 1964, the ADRB denied the applicant's request for a discharge upgrade.

11.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations), 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.  Although the applicant contends he served a term of service in the Army for 
3 years, evidence of record shows he completed 1 year, 11 months, and 10 days of his 3-year enlistment. 

2.  Since the applicant’s record of service included one nonjudicial punishment, four summary court-martial convictions, and 48 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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)                                         AR20090018844





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ABCMR Record of Proceedings (cont)                                         AR20090018844



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