IN THE CASE OF:	  

		BOARD DATE:	  29 October 2010

		DOCKET NUMBER:  AR20100011858 


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 an honorable discharge. 

2.  The applicant did not provide any comments with his application.

3.  The applicant did not provide any documentation with his request. 

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.  A copy of his DD Form 4 (Enlistment Record - Armed Forces of the United States) shows he had prior active service in the U.S. Marine Corps (USMC) during the period 30 December 1953 through 17 December 1956.  He was honorably discharged and later enlisted in the Regular Army on 17 April 1961 for a period of 3 years.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty 464.17 (Parachute Rigger).

3.  A copy of a DA Form 26 (Record of Court-Martial Conviction) shows the applicant was tried by a summary court-martial on 5 October 1962 for being AWOL from 27 September 1962 to 12 October 1962.  He was sentenced to perform hard labor without confinement for 30 days and forfeiture of $40.00.  The sentence was approved on 8 October 1962.

4.  On 22 July 1963, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order given by his commanding officer.

5.  On 25 July 1963, against his plea of not guilty, the applicant was convicted by a special court-martial of being AWOL from 9 May 1963 to 19 June 1963 charge.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $40.00 per month for 6 months, and reduction to private (PV1)/E-1.  The sentence was approved on 5 August 1963.

6.  On 26 October 1963, the applicant accepted NJP under Article 15, UCMJ, for going AWOL from 24 October to 25 October 1963.

7.  The facts and the circumstances surrounding the applicant's discharge are not contained in the available records; however, the applicant's DD Form 214 shows he was discharged on 20 November 1963 under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) and issued a DD Form 258A (Undesirable Discharge Certificate).  He completed 2 years, 2 months, and 14 days of net service during this period and 5 years, 2 months, and 2 days of total active service.  He had a total of 140 days of time lost due to AWOL and confinement.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more or the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.  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.  

11.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his undesirable discharge to an honorable discharge was carefully considered; however, it is not supported by the evidence of record.  

2.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of his service as under other than honorable conditions accurately reflects his record of service which includes conviction by a summary and a special court-martial and two NJP actions under Article 15, UCMJ.

3.  The applicant was 25 years old when he enlisted in the Regular Army.  He had previously been honorably discharged from the USMC after serving a 3-year period.  There is no doubt that he knew what military standards of conduct were.  Absent documentation submitted in his defense, there is no mitigating circumstance upon which to grant relief in the form of an honorable or general discharge. 

4.  In view of the foregoing, 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)                                         AR20100011858



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ABCMR Record of Proceedings (cont)                                         AR20100011858



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