IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100008709 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states that he was punished for what he did and his punishment was harsh.  He states his good service should now be taken into consideration and his discharge should be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 11 October 1965.

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 7 December 1945.  He was 17 years old when he enlisted and his parents signed a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) consenting to his enlistment.

3.  The applicant enlisted in the Regular Army on 7 December 1962.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 120.00 (Pioneer).

4.  On 6 May 1963, the applicant was assigned to Company E, 168th Engineer Battalion and then on 7 October 1963 he was assigned to Company D, 237th Engineer Battalion.  His duty station for both units was in the Federal Republic of Germany.

5.  The applicant's military personnel record shows he accepted four nonjudicial punishment (NJP) actions under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from
1 September 1963 to 2 September 1963, on 25 February 1964, from 5 July 1964 to 6 July 1964, and on 24 November 1964.  In addition, he was also cited for being disrespectful in language toward a superior noncommissioned officer (NCO).

6.  On 29 June 1965, the applicant was convicted by a special court-martial of being AWOL from 30 April to 27 May 1965.  The applicant's punishment consisted of confinement at hard labor for 6 months, forfeiture of $74.00 pay per month for 6 months, and reduction to the rank/grade of private (PV1)/E-1.  The portion of the sentence to confinement at hard labor was suspended for 6 months by the convening authority.

7.  The applicant was notified by his commander of his intent to recommend him for elimination from the Army under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness) by reason of unfitness based on his disregard for authority and lack of military discipline.  On 4 August 1965, the applicant acknowledged that he had been counseled and advised of the action being recommended against him.  He was advised as to the type of discharge he may receive as a result of his discharge action.  He further understood that if an undesirable discharge is issued to him that such discharge will be under conditions other than honorable; that as a result of such discharge he may be deprived of many or all rights as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He did not request an appearance before a board of officers or to submit statements in his own behalf.  He also indicated he did was afforded the opportunity to request counsel; however, he declined to do so.


8.  On 2 September 1965, the applicant's unit commander recommended his elimination from the service under the provisions of Army Regulation 635-208 with a general discharge.  He stated the applicant's conduct and efficiency ratings were unsatisfactory.  The commander noted the applicant had his final physical examination on 13 August 1965 and a psychiatric examination was completed on 16 August 1965.  However, these two documents are not available for review.

9.  On 4 September 1965, the battalion commander concurred with the unit commander's elimination action and recommended a general discharge.

10.  On 13 September 1965, the group commander concurred with the chain of command's elimination action; however, he recommended issuance of an Undesirable Discharge Certificate.

11.  On 23 September 1965, the appropriate separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

12.  On 4 October 1965, the applicant certified that he had seen and read a copy of his elimination proceedings to include all enclosures and endorsements directing his discharge from the U.S. Army.

13.  On 11 October 1965, the applicant was accordingly discharged and issued an Undesirable Discharge Certificate.  Item 11c (Reason and Authority) of the applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208.  He had completed 2 years and 6 months of active Federal service with 126 days of time lost.

14.  There is no evidence in the available record to show the applicant applied to the Army Discharge Review Board (ADRB) for a discharge upgrade within its
15-year statute of limitations.

15.  References:

   a.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable 


discharge, when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including 
but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

   b.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), governs the policies and procedures for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant was 17 years of age when he enlisted, he successfully completed his initial entry and advanced individual training.  Upon completion of this training, he should have known what the acceptable standards of conduct were for members of the Armed Forces.

2.  A review of the applicant's record of service shows he was administered four NJP actions, as well as having had a special court-martial conviction, which shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He contends his punishment was harsh; however, the record shows the court-martial convening authority suspended the 6-month confinement at hard labor portion of his court-martial sentence.  Therefore, the convening authority did show the applicant leniency at the time the punishment was imposed in 1965.

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the available facts of the case.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  In view of the foregoing, there is insufficient evidence with which to upgrade the applicant's undesirable discharge.



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)                                         AR20100008709



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)