BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090021841 


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 that his undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states that he served 2 years and 8 months of honorable service before he reenlisted for a second term.  He goes on to state that he was having personal problems and started drinking heavily and going absent without leave (AWOL), for which he had no excuse.  He continues to state that he regrets his actions and asks the Board to consider his prior honorable service and the fact that he has been self-employed in the housing business since the early 1970's and created many jobs.

3.  The applicant provides a 2-page handwritten statement explaining his application, copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and three third-party character references.

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 at age 17 with parental consent on 14 January 1959 for a period of 3 years.  He completed his basic training at Fort Gordon, Georgia, and was transferred to Fort Bragg, North Carolina, for duty as an ammunition bearer.  He was advanced to the pay grade of E-4 on 16 December 1960 and on 27 September 1961 he was honorably discharged for the purpose of reenlistment.  He reenlisted on 28 September 1961 for a period of 3 years and formal training as an image interpreter.

3.  He remained at Fort Bragg until November 1961 when he was transferred to Fort Holabird, Maryland, to attend training as a photo-image interpreter.

4.  On 26 September 1962 he was convicted by a summary court-martial of being AWOL from 10 September 1962 to 18 September 1962.

5.  On 17 December 1962, he was convicted by a summary court-martial of three specifications of failure to repair.

6.  The applicant was transferred to Fort Hood, Texas, on 1 February 1963 and on 15 February 1963 he was convicted by a special court-martial of being AWOL from 2 February 1963 to 3 February 1963 and for disobeying a lawful order from a super noncommissioned officer.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay, and reduction to the pay grade of E-1.

7.  The applicant underwent a psychiatric evaluation and was diagnosed as having chronic severe emotional instability reaction, manifested by poor judgment, low stress tolerance, and resentment of authority.  The examining psychiatrist opined that he was unsuitable for further military service and recommended that he be discharged.

8.  On 19 March 1963, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character) for unfitness due to his frequent involvements in incidents of a discreditable nature with civil and military authorities.

9.  The applicant declined the opportunity to consult with counsel, waived his rights, and elected not to submit a statement in his own behalf.

10.  The appropriate authority approved the recommendation for discharge on 15 April 1963 and directed that he be furnished with an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions on 7 May 1963 under the provisions of Army Regulations 635-208 for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 1 year, 3 months, and 27 days of active service during his current enlistment for a total of 4 years and 11 days of active service.  He had 103 days of lost time due to AWOL and confinement.

12.  At the time of his discharge the applicant acknowledged that he had been advised of the procedures for applying to the Army Discharge Review Board for a review of his discharge.  However, there is no evidence in the available records to show he ever applied for a discharge upgrade within that board's 15-year statute of limitations.

13.  A review of his official records failed to show that the applicant offered any mitigating circumstances for his behavior or that he sought assistance from the chain of command for any problems he was having.

14.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

3.  The applicant's contentions and supporting documents have been noted by the Board.  However, given his repeated misconduct and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  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 requirement.

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)                                         AR20090021841



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ABCMR Record of Proceedings (cont)                                         AR20090021841



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