IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20100000991 


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 honorable.

2.  The applicant states that he was young and very immature, that he has been sorry for his behavior for 46 years, and that before he dies he wishes this flaw in his life could be fixed.  He points out that he has a wife of 39 years, two sons and four grandchildren, that he was a railroad engineer for over 30 years, and that he quickly turned his life around after he was discharged.  He goes on to state that he is 65 years old and still embarrassed by his discharge.   

3.  The applicant provides a copy of his DD Form 24 (Report of Transfer or Discharge) 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 on 1 May 1944.  He enlisted in the Regular Army on 
4 May 1961 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 131.00 (armor crewman).      

3.  On 20 April 1962, in accordance with his plea, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 22 March 1962 to 9 April 1962.  He was sentenced to forfeit $25.00 pay for 2 months and to perform hard labor without confinement for 2 months.  On 27 April 1962, the convening authority approved the sentence.  

4.  On 24 May 1962, the applicant was convicted by a summary court-martial of being AWOL from 7 May 1962 to 8 May 1962.  He was sentenced to forfeit $25.00 pay for 1 month and to perform hard labor without confinement for 
15 days.  On 24 May 1962, the convening authority approved the sentence.

5.  The applicant's Army Discharge Review Board (ADRB) proceedings indicate that on 4 November 1962 nonjudicial punishment was imposed against the applicant for failure to make bed check.  His punishment consisted of extra duty. 

6.  The applicant's ADRB proceedings indicate that on 16 November 1962 nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a reduction to E-2.

7.  The applicant's ADRB proceedings indicate that on 9 December 1962 nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of extra duty. 

8.  On 18 March 1963, nonjudicial punishment was imposed against the applicant for missing formation.  His punishment consisted of an oral reprimand and extra duty.

9.  On 16 April 1963, nonjudicial punishment was imposed against the applicant for being AWOL for 5 and 1/2 hours.  His punishment consisted of an oral reprimand and extra duty.

10.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's ADRB proceedings indicate that on an unknown date the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-208 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.

11.  The ADRB proceedings indicate that on 22 April 1963, after consulting with counsel, the applicant waived consideration of his case by a board of officers, declined counsel, and elected not to make a statement in his own behalf.    

12.  The ADRB proceedings indicate that on 4 June 1963 the separation authority approved the recommendation for separation and directed that he be issued an undesirable discharge.   

13.  On 8 July 1963, 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 had served a total of 2 years, 1 month, and 15 days of creditable active service with 20 days of lost time.  

14.  On 4 November 1964, the ADRB denied the applicant's request for an honorable discharge.

15.  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. 

16.  Army Regulation 635-200, 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 member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

17.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed basic combat training, advanced individual training and he was awarded MOS 131.00.  In addition, he served over 2 years of service prior to his discharge.    

2.  Good post service conduct alone is normally not a basis for upgrading a discharge.

3.  The applicant’s record of service included five nonjudicial punishments, one summary court-martial conviction, one special court-martial conviction, and 
20 days of lost time.  As a result, 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.

4.   The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized 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 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)                                         AR20100000991



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ABCMR Record of Proceedings (cont)                                         AR20100000991



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