IN THE CASE OF:
BOARD DATE: 03 June 2010
DOCKET NUMBER: AR20090020296
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 undesirable discharge to an honorable discharge.
2. The applicant states there were no errors in his discharge. He became an alcoholic and just didn't care anymore about the military. He regrets those actions now. After 40 years, he just wants to have an honorable discharge.
3. The applicant provides a copy of his resume.
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 applicants 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 applicants 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 records show he enlisted in the Regular Army for a period of 3 years on 18 November 1963 and he was trained in and awarded military occupational specialty 64A (Light Vehicle Driver). He also executed a 6-year reenlistment on 2 April 1965 and attained the rank/grade of specialist four (SP4)/E-4.
3. His records show he served in Okinawa from on or about 29 November 1965 to on or about 19 August 1967. His records further show he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).
4. His records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:
* On 7 March 1964, for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of $10.00 pay
* On 12 August 1964, for riding a jeep without a trip ticket or a log book (without authority). His punishment consisted of a forfeiture of $20.00 pay, and 14 days of restriction and extra duty
* On 10 June 1965, for being derelict in the performance of his duties (failing to go at the time prescribed to his appointed place of duty and being found asleep on duty). His punishment consisted of 14 days of restriction and extra duty
* On 3 May 1966, for disobeying a lawful order. His punishment consisted of an oral reprimand
5. On 26 May 1966, he pled guilty at a special court-martial to three specifications of stealing currency from the Okinawa Regional Exchange, and 13 specifications of unlawfully uttering bad checks. The court sentenced him to a reduction to private (PV1)/E-1, confinement at hard labor for 2 months, and a forfeiture of $50.0 pay per month for 4 months.
6. On 3 June 1966, the convening authority approved a lesser sentence of a reduction to private first class (PFC)/E-3 and the adjudged forfeiture.
7. His records reveal acceptance of additional NJP under the provisions of Article 15, UCMJ, as follows:
* On 3 April 1967, for failing to maintain a vehicle, driving a vehicle without a permit, and causing an accident. His punishment consisted of a forfeiture of $50.00 pay per month for 2 months and 21 days of extra duty and restriction
* On 18 April 1967, for disobeying a lawful order. His punishment consisted of a forfeiture of $40.00 pay per month for 2 months, 30 days of restriction and extra duty, and a reduction to PV1/E-1
8. On 10 May 1967, he pled guilty at a special court-martial to 2 specifications of unlawfully uttering bad checks and one specification of disobeying a lawful order. The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $25.00 pay per month for 6 months. The convening authority approved the sentence on 15 May 1967.
9. The specific facts and circumstances concerning his discharge are not available for review with this case. However, his record contains a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 20 August 1967 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge -Unfitness and Unsuitability), Separation Program Number 28B, by reason of unfitness - frequent involvement of incidents of a discreditable nature with civil or military, with an under other than honorable conditions character of service. This form also shows he completed a total of 3 years, 5 months, and 6 days of active service and he had 117 days of lost time.
10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.
11. Army Regulation 635-212, then in effect, set forth the policy for the administrative separation for unfitness and unsuitability. It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: Frequent incidents of a discreditable nature with civil or military authorities
* Sexual perversion
* Drug addiction
* An established pattern of shirking
* An established pattern showing dishonorable failure to pay just debts
12. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.
13. Army Regulation 635-200 sets forth the basic policy 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 members 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.
14. 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 record is void of the facts and circumstances that led to his discharge. However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 20 August 1967 under the provisions of Army Regulation
635-212 by reason of unfitness, with an undesirable discharge.
3. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He provided no information that would indicate the contrary. Further, his discharge accurately reflects his overall record of service.
4. Based on his extensive record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This 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) AR20090020296
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