IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100001029 


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 an upgrade of his discharge to honorable.

2.  The applicant states he has not had any trouble staying straight since 1967 and that he has been sober for 37 years.

3.  The applicant did not provide any additional documentary evidence.

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 records show he enlisted in the Regular Army for a period of 3 years on 21 October 1958.  He completed basic combat and advanced individual training and was awarded military occupational specialty 810.00 (Medical Corpsman).  The highest rank/grade he attained during his period of military service was private first class/E-3.

3.  On 25 January 1960, he pled guilty at a special court-martial to two specifications of stealing currency from local nationals in Germany.  The court sentenced him to confinement at hard labor for 6 months, a reduction to private/E-1, and a forfeiture of $50.00 pay per month for 6 months.  The convening authority approved his sentence on 25 January 1960.

4.  On 8 June 1960, the unexecuted portion of his sentence was remitted without further action.

5.  On 23 November 1960, he pled guilty at a summary court-martial to one specification of disobeying a lawful order not to store firearms or munitions in the billets and one specification of wrongfully possessing munitions.  The court sentenced him to a forfeiture of $50.00 pay and 30 days of restriction.  The convening authority approved his sentence on 25 November 1960.  However, on 1 December 1960, the finding of guilty to the second specification was set aside.

6.  The facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 5 June 1961 under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) with an under other than honorable conditions character of service and was furnished an Undesirable Discharge Certificate.  This form shows he completed 2 years, 3 months, and 1 day of creditable active service and he had 135 days of lost time.

7.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

8.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.  The applicant contends his discharge should be upgraded to honorable.

2.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 5 June 1961 under the provisions of Army Regulation 635-208 for unfitness with an under other than honorable discharge.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.

4.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.


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)                                         AR20100001029



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ABCMR Record of Proceedings (cont)                                         AR20100001029



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