BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100000292 


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, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he believes he earned an honorable discharge.  

3.  The applicant provides two copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 10 July 1964.

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's military record shows he enlisted in the Regular Army in pay grade E-1 on 9 February 1961, for 3 years.  He completed training and was awarded military occupational specialty 111, light weapons infantryman.  He was advanced to pay grade E-3 on 16 October 1961.  He served in Germany from 5 August 1961 to 21 January 1964.  

3.  On 6 August 1962, a DD Form 458 (Charge Sheet) was prepared by the Commander, Troop C, 3rd Reconnaissance Squadron, 12th Cavalry, 3rd Armored Division.  The applicant was charged with being disrespectful in language towards a superior noncommissioned officer (NCO) on 31 July 1962.  

4.  On 7 August 1962, the applicant was convicted by a summary court-martial of one specification of being disrespectful in language towards a superior NCO on 31 July 1962.  He was sentenced to a reduction to pay grade E-2 and a forfeiture of $50.00 pay.  The sentence was approved on 7 August 1962.

5.  On 25 September 1962, the applicant was convicted by a special court-martial of one specification of committing an assault upon a superior NCO by striking him in the face with a force likely to produce grievous bodily harm, to wit:  his foot or knee, on 9 September 1962; and one specification of being disrespectful in language towards his superior NCO on 9 September 1962.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $50.00 pay for
6 months.  The sentence approved on 28 September 1962.

6.  On 9 July 1963, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 5 to 7 July 1963.  His punishment included 14 days of restriction and extra duty and a forfeiture of $28.93 pay.

7.  On 18 October 1963, the applicant was convicted by a special court-martial of one specification of being AWOL from 9 to 11 October 1963.  He was sentenced to confinement at hard labor for 1 month and a forfeiture of $72.00 pay for
1 month.  The sentence was approved on 18 October 1963.

8.  On 14 November 1963, the applicant underwent a psychiatric examination.  He was found to be alert, in good contact with his environment.  He spoke clearly and coherently although at times haltingly.  His emotional behavior was characterized by overreacting and poor control.  Most of his offenses had been the result of a rescinding control of his actions.  The evaluating psychiatrist, an Army Medical Corps officer, recommended he be separated from the service under the provisions of Army Regulation 635-209.  

9.  On 18 February 1964, the applicant was convicted by a special court-martial of one specification of unlawfully shooting a service member in the face with a gas pistol on 2 February 1964.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $73.00 pay per month for 6 months.  The sentence was adjudged on 18 February 1964.

10.  Later, the convening authority set aside so much of the 18 February 1964 sentence pertaining to forfeiture of pay and remitted the unexecuted portion of the 18 February 1964 sentence to confinement at hard labor for 6 months.

11.  On 28 February 1964, the applicant's company commander recommended that he be eliminated under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge – Unfitness).  The applicant’s platoon leader stated, in his opinion the applicant was the most undependable and immature person he had known.  When the applicant was pushed hard he would work and then only do it grudgingly.  The applicant had received counseling from him, his squad leader, and platoon sergeant many times and each time they came up with negative results.  

12.  On 28 February 1964, the applicant acknowledged the recommendation for his discharge under the provisions of Army Regulation 635-208 for unfitness.  He also acknowledged that he understood he could be issued an undesirable discharge and the results of the issuance of such a discharge.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.

13.  On 10 June 1964, the applicant's intermediate commander recommended approval of his elimination from the service.  He stated the applicant’s record clearly revealed a pattern of serious offenses.  The applicant had received two Article 15s, one summary court-martial, and three special courts-martial.  Repeated efforts at rehabilitation had not produced any change in his present attitude.  The intermediate commander recommended that the applicant be discharged for unfitness and issued an Undesirable Discharge Certificate.

14.  On 20 June 1964, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-208 and directed the issuance of an Undesirable Discharge Certificate.

15.  The applicant was discharged in pay grade E-1 on 10 July 1964 under the provisions of Army Regulation 635-208 with an undesirable discharge.  He was credited with completing 3 years and 4 months of net active service and he had 148 days of lost time due to being AWOL and in confinement.

16.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.
17.  Army Regulation 635-208, then in effect, provided the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  An undesirable discharge was normally issued.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-7a, then in effect, provided an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, also provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, in view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to either an honorable or a general discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The evidence of record shows the applicant was punished under Article 15 for being AWOL, he was convicted by one summary and three special courts-martial of assault on an NCO, and being disrespectful in language towards an NCO.  His company commander stated when the applicant was pushed hard he would work and then only do it grudgingly.  He was counseled numerous times with negative results.  His intermediate commander stated the applicant’s record clearly revealed a pattern of serious offenses and recommended approval of the elimination action.  The applicant waived his rights and acknowledged he understood he could receive an undesirable discharge. 

3.  There is nothing in the available records and the applicant did not provide any evidence to show that he was denied due process or that his rights were violated. He has provided no evidence to show that he deserved an honorable or a general discharge at that time of separation or now.  He has provided neither probative evidence nor a convincing argument in support of an upgrade of his undesirable discharge.
4.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100000292



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)