IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090020643 


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, his undesirable discharge be upgraded. 

2.  The applicant states:

* He was to be given a general discharge
* A new company commander took over and a bad conduct discharge was given instead
* He thinks this was done in error
* His discharge has hindered him
* He has no benefits and needs them now
* He was young and not in the right state of mind

3.  The applicant provides no documentary evidence 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 was born 22 August 1946.  He enlisted in the Regular Army on 30 August 1963 for a period of 3 years.  He successfully completed basic training, advanced individual training, and basic airborne training.  He was awarded military occupational specialty 112.00 (heavy weapons infantryman).  

3.  On 22 September 1964, the applicant was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 21 April 1964 to 23 July 1964 and 9 August 1964 to 10 August 1964.  He was sentenced to be confined at hard labor for 3 months, to forfeit $28 pay for 6 months, and to be reduced to E-1.  On 24 September 1964, the convening authority approved the sentence.  On 17 November 1964, the unexecuted portion of the sentence to confinement was suspended for 2 months. 

4.  On 24 February 1965, the applicant was convicted by a special court-martial of being AWOL from 18 November 1964 to 16 February 1965.  He was sentenced to be confined at hard labor for 6 months and to forfeit $28 pay for 
6 months.  On 27 February 1965, the convening authority approved the sentence.

5.  The applicant's unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He cited the applicant had been counseled many times regarding his conduct and attitude and he had been convicted by two special court-martials.  

6.  On 6 March 1965, after consulting with counsel, the applicant waived consideration of his case by a board of officers and elected not to make a statement in his own behalf.  He also indicated that in the event an undesirable discharge were issued, he understood he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

7.  On 28 April 1965, the separation authority approved the recommendation for 
separation and directed that he be issued an undesirable discharge.

8.  On 29 April 1965, the unexecuted portion of the sentence to confinement was remitted.

9.  On 7 May 1965, the applicant was discharged with an undesirable discharge 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 8 months and 13 days of creditable active service with 363 days of lost time.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 sets forth the basic authority for the separation of enlisted personnel.  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 evidence of record does not support the applicant's contention he received a bad conduct discharge.  Evidence of record shows he was discharged with an undesirable discharge.

2.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted in the Regular Army, he successfully completed training and he completed over 1 year of service prior to his first special court-martial.  

3.  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.
benefits

4.  Since the applicant’s record of service included two special court-martial convictions and 363 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.

5.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

6.  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)                                         AR20090020643



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ABCMR Record of Proceedings (cont)                                         AR20090020643



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