IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20100000157 


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 to a general discharge.

2.  The applicant states:

* his discharge was not what was agreed on with his unit commander
* he was told he would be discharged as unfit under honorable conditions (a general discharge), not undesirable 

3.  The applicant provides:

* recommendation for discharge
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 258A (Undesirable Discharge Certificate)

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 27 October 1965 for a period of 3 years.  He successfully completed basic combat training and on-the-job training in military occupational specialty 63A (mechanic maintenance apprentice).

3.  On 24 August 1966, the applicant was convicted by a summary court-martial of leaving his appointed place of duty without authority and disobeying a lawful command.  He was sentenced to be confined at hard labor for 45 days, to forfeit $64.00 of pay per month for 1 month, and to be reduced to E-1.  On 25 August 1966, the convening authority approved the sentence.

4.  On 16 September 1966, the applicant was convicted by a special court-martial of six specifications of failing to obey lawful orders.  He was sentenced to be confined at hard labor for 3 months and to forfeit $64.00 of pay per month for 3 months.  On 18 September 1966, the convening authority approved the sentence.

5.  On 15 February 1967, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) for 4 1/2 hours on 28 January 1967 and being AWOL for 11 hours on 31 January 1967.  He was sentenced to be reduced to E-1, to forfeit $67.00 of pay per month for 1 month, and to be restricted to the limits of the company area for 1 month.  On 17 February 1967, the convening authority approved the sentence.

6.  On 21 February 1967, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability by his unit commander.

7.  On 26 February 1967, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  The unit commander based his recommendation for separation on the applicant's negative attitude toward military life, numerous counseling sessions and repeated confinement produced no results, and rehabilitative efforts proved to be ineffective.

8.  On 10 March 1967, after consulting with counsel and being advised of his separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

9.  On 20 March 1967, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

10.  On 30 March 1967, the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 1 month, and 25 days of creditable active service with 99 days of lost time.

11.  In support of his claim, the applicant provided a recommendation for discharge, dated 30 January 1967, from his unit commander.  This recommendation states, in pertinent part, "I am recommending that you be eliminated from the military service as unsuitable."  This recommendation does not show a general discharge was recommended.

12.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations), 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 he was told he would be discharged for unfitness with a general discharge by his unit commander; however, he provided a recommendation for discharge for unsuitability from his unit commander.  This recommendation for discharge does not show a general discharge was recommended.

2.  Evidence of record shows the applicant was initially notified of his pending separation under the provisions of Army Regulation 635-212 for unsuitability on 21 February 1967 by his unit commander.  However, 5 days later on 26 February 1967, his unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  The applicant was advised by counsel of his separation for unfitness on 10 March 1967 and the separation authority approved the recommendation for separation on 20 March 1967 and directed the applicant be furnished an undesirable discharge.

3.  The applicant's record of service included two summary courts-martial, one special court-martial, and 99 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  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.

5.  The type of discharge directed and the reasons were therefore 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)                                         AR20100000157



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)