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IN THE CASE OF:
BOARD DATE: 5 October 2010
DOCKET NUMBER: AR20100009662
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 an honorable discharge based upon the fact that he has had a clean record since he was discharged from the Army.
2. He states that someone from the service told him his discharge could be upgraded six months following his discharge. He also states he is getting to the age where he will be needing benefits from the Department of Veterans Affairs and he is currently trying to rent an apartment, but his undesirable discharge is having an adverse impact on his efforts.
3. He provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. His record shows he was inducted into the Army of the United States on 30 June 1960. Upon completion of initial entry training, he was awarded military occupational specialty 310 (Field Communication Crewman). On 21 February 1962 he was honorably discharged for the purpose of immediate enlistment in the Regular Army (RA). He continued to serve in the RA until he was discharged on 15 March 1965. The highest rank he attained while serving on active duty was private first class/pay grade E-3. However, at the time of his discharge he held the rank of private/pay grade E-1.
3. His military service record reveals a disciplinary history that includes:
a. his acceptance of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on three occasions for the following offenses:
(1) Two incidents of departing his unit in an absent without leave (AWOL) status
(2) One incident of failing to report for duty at the appropriate place and time
b. being apprehended and confined by civil authorities for stealing an automobile on 20 October 1964. As a result, he was sentenced to be confined at hard labor for 18 months year in the Georgia Penitentiary.
4. On 24 February 1965, the applicants unit commander recommended him for separation under the provisions of paragraph 33a of Army Regulation 635-206 (Misconduct - Conviction by Civil Court, AWOL, Desertion) because he had been convicted by a civil court and he had demonstrated a pattern of misconduct. The unit commander also recommended that he be issued a DD Form 258A (Undesirable Discharge Certificate). His battalion and brigade commanders concurred with the unit commander's recommendations.
5. On 1 March 1965, the separation authority directed that he be discharged under the provisions of Army Regulation 635-206 and issued an Undesirable Discharge Certificate.
6. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-206 on 15 March 1965 with an under other than honorable conditions characterization of service and issued an Undesirable Discharge Certificate.
7. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15 year statute of limitation.
8. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action had been taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.
9. Army Regulation 635-200 (Enlisted 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 members 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.
2. The applicant's record reveals a disciplinary history that includes numerous offenses to include a civilian court conviction while serving on active duty.
3. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service.
4. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge to an honorable discharge or to a general discharge under honorable conditions.
5. The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.
Additionally, 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 any evidence that would satisfy this requirement.
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) AR20100009662
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ABCMR Record of Proceedings (cont) AR20100009662
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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