BOARD DATE:	23 September 2010  

		DOCKET NUMBER:  AR20100008938 


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.

2.  The applicant states it has been many years since he earned the discharge he received.  He adds he was only 20 years old and had no care for his future.  The applicant maintains he has changed and grown since then and has become a respected member of society.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three letters of support.

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 record shows he enlisted in the Regular Army and entered active duty on 28 February 1963.  He was 17 years of age at the time of his enlistment.

3.  The applicant's records show he receive three Article 15's.  The dates of his offenses and punishments are as follows:

	a.  on 11 May 1964 for breaking restriction.  His punishment consisted of reduction to the rank and pay grade of private/E-2 (suspended), 14 days of restriction, and 14 days of extra duty;

	b.  on 9 July 1964 for being disrespectful in language to a superior noncommissioned officer.  His punishment consisted of forfeiture of $15.00 pay, 14 days of restriction, and 14 days of extra duty; and

	c.  on 16 September 1964 for being absent from his unit on two separate occasions.  His punishment consisted of reduction to the rank and pay grade of private/E-2 and 7 days of extra duty.

4.  The applicant's records also show he was convicted by a special court-martial (SPCM) for violation of the following articles of the Uniform Code of Military Justice (UCMJ) with the following sentences:

	a.  SPCM Order Number 2, dated 10 February 1965, Article 86 for failure to go to his appointed place of duty on two separate occasions and Article 134 for breaking restriction.  His sentence consisted of confinement at hard labor for 3 months and a forfeiture of $55.00 pay for 3 months; and

	b.  SPCM Order Number 6, dated 8 March 1965, Article 86 for failure to go to his appointed place of duty and Article 91 for being disrespectful in language to a superior noncommissioned officer.  His sentence consisted of confinement at hard labor for 4 months (suspended) and a forfeiture of $55.00 pay per month for 4 months.

5.  The applicant's rating chain recommended that he be discharged under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness), due to unfitness.  The commander and the executive officer recommended that he be furnished an Undesirable Discharge Certificate.

6.  On 20 March 1965, the applicant acknowledged that he had been advised of the basis for the contemplated separation action, its effects, and the rights available to him.  He requested a hearing by a board of officers and elected to submit a statement in his behalf.  In his statement he said that when he was assigned a detail, he performed the detail to the best of his ability and could not remember ever being replaced, except when he was sick.

7.  On 13 April 1965, the applicant acknowledged receipt of a Notification of Hearing Before Board of Officers.

8.  The Board of Officers Synopsis of Hearing shows the board convened on 26 April 1965.  The applicant and his counsel appeared before the board.  The board received testimony from the executive officer, the first sergeant, and the platoon sergeant, as well as the applicant.  The board's findings and recommendation were not contained in the applicant's record.

9.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 28 June 1965 under the provisions of Army Regulation 
635-208 with a characterization of service of under other than honorable conditions.  The applicant was credited with 1 year, 11 months, and 23 days of active service with 129 days listed as time lost under Title 10, U.S. Code, section 972.

10.  On 29 December 1971, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 6 March 1971, the ADRB denied the applicant's request for a discharge upgrade.  The ADRB determined that the applicant was properly discharged.

11.  The three supporting statements submitted by the applicant speak highly of his character.  One author stated the applicant was responsible for remodeling the fellowship hall at the church.  The production supervisor at Stanley-Photo Industrial Tools said the applicant has been employed since July 1973 and he inspires cooperation, confidence, and respect in others.  One author stated that during the applicant's tenure with their agency, the applicant displayed a very special gift for being able to establish an immediate rapport with clients.  He said the applicant was well liked by staff and clients and contributed to the team-approach philosophy of the company.

12.  Army Regulation 635-208, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for undesirable habits and traits of character.  It provided that a board of officers would convene for the elimination of enlisted personnel having undesirable habits and traits of character.  A recommendation for discharge because of undesirability will be made in the case of an enlisted person who repeatedly commits petty offenses not warranting trial by courts-martial.  When discharged because of undesirable habits or traits of character, an Under Other than Honorable Conditions Discharge Certificate was normally considered appropriate.

13.  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.

14.  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.  Although a copy of the board of officers' findings and recommendations are not in the available records, the presumption of regularity must be applied.  The applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

2.  The records show that the applicant was 18 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, the contention by the applicant that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

3.  The applicant's record of indiscipline which includes three Article 15s and two SPCM convictions does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a discharge upgrade.

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)                                         AR20100008938



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)