BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100013650 


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 general discharge to an honorable discharge.

2.  The applicant states his conduct and efficiency ratings were "excellent" from the date of his enlistment on 12 March 1962 until 19 June 1963.

	a.  He states his DA Form 24 (Service Record) shows his conduct and efficiency were originally rated "excellent" until 30 August 1964; however, someone changed those entries to "good."  He adds that his reenlistment eligibility (RE) code was also changed on his DA Form 24 from "RE-1" to "RE-3" and the word "not" was added in front of the entry "eligible for reenlistment."  He notes that neither entry is initialed.

	b.  He states he received nonjudicial punishment (NJP) for:

* being 15 minutes late for duty on 18 April 1963
* missing a readiness test on 13 January 1964
* disorderly conduct in the barracks on 19 January 1964

	c.  As a result, he was recommended for "unsuitability for reenlistment" and given conduct and efficiency ratings of "unsatisfactory."  However, his DA Form 24, section 4 (Chronological Record of Military Service), shows his conduct and efficiency were rated "good" for this period of time.

	d.  He states that he takes full responsibility for his actions, but believes his character of service should be "honorable" rather than "under honorable conditions."

3.  The applicant provides copies of his DA Form 24, three Article 15's (NJP), Certificate of Unsuitability for Reenlistment memoranda, and 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 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 enlisted in the Regular Army for a period of 3 years on 12 March 1962.  Upon completion of training he was awarded military occupational specialty 941.10 (Cook).

3.  The applicant's DA Form 24 shows in:

	a.  section 4 that:

		(1)  he served in U.S. Army Europe in Germany from 30 September 1962 through 30 August 1964 and was assigned to:

		(a)  Company B, 1st Battalion, 7th Infantry, from 30 September 1962 through 19 June 1963 and

		(b)  Headquarters and Headquarters Company, 1st Battalion, 7th Infantry, from 20 June 1963 through 30 August 1964; and

		(2) he was assigned to Company F, 2nd Battalion, 1st Training Regiment, U.S. Army Training Center, Infantry, Fort Gordon, Georgia, on 13 October 1964.



	b.  section 4 also shows he received conduct and efficiency ratings of:

* "excellent" from 12 March 1962 through 19 June 1963
* "excellent" from 20 June 1963 through 30 August 1964 (these ratings are lined through and show the date "31 August 1964" and initials)
* "good" from 31 August 1964 through 13 October 1964

	c.  section 10 (Remarks) shows the entry "not recommended for further service.  RE-3 not eligible for reenlistment."  [It is noted that a pen-and-ink change was made to the entry "RE-1" changing it to "RE-3" and the word "not" was inserted in the phrase.]

4.  On 18 April 1963, the applicant received NJP under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit from 0015 hours, 18 April 1963, to 0030 hours, 18 April 1963.  His punishment consisted of 7 days of extra duty.

5.  On 14 January 1964, the applicant received NJP under Article 15, UCMJ, for being absent from his place of duty at 0315 hours, 13 January 1964, with intent to avoid a readiness test.  His punishment consisted of reduction to the grade of private/E-2 effective 20 January 1964.

6.  On 20 January 1964, the applicant received NJP under Article 15, UCMJ, for being disorderly in quarters at 2300 hours, 19 January 1964.  His punishment consisted of 7 days of restriction to the company area.

7.  Headquarters, 1st Battalion, 7th Infantry, U.S. Forces, letter, dated 28 January 1964, subject:  Certificate of Unsuitability for Reenlistment, and 1st endorsement, dated 30 January 1964, show the company and battalion commanders recommended the applicant be barred from reenlistment in the service based on two Article 15's.  The company commander rated the applicant's conduct and efficiency as "unsatisfactory."

8.  Headquarters, 3rd Infantry Division, U.S. Forces, 2nd endorsement, dated 31 January 1964, approved the Certificate of Unsuitability for Reenlistment.

	a.  Paragraph 2b shows the remark "not recommended for further service" had been entered in the Remarks section of the applicant's DA Form 24.

	b.  Paragraph 2c shows the applicant was to be notified of the approved bar and thoroughly counseled and informed of the method of having the bar from reenlistment removed if he demonstrated in future service that he had been thoroughly rehabilitated and he possessed the traits and habits required of a Soldier.

9.  The applicant was promoted to private first class/E-3 on 25 May 1964.

10.  There is no evidence the bar from reenlistment was voided or removed.

11.  The applicant's DD Form 214 shows he was released from active duty on 11 March 1965 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) based on expiration of term of service and transferred to the U.S. Army Reserve Control Group (Reinforcement), XIV U.S. Army Corps, to complete his Reserve obligation.

	a.  At the time he had completed 3 years of net active service and 1 year, 11 months, and 20 days of foreign service.

	b.  Item 13a (Character of Service) shows "under honorable conditions."

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he had conduct and efficiency ratings of "excellent" from 12 March 1962 until 19 June 1963 and "good" from 31 August 1964 through the date of his separation.  He also contends that certain entries on his DA Form 24 are in error; however, he takes full responsibility for his actions during that period and believes his character of service should be categorized as honorable.

2.  The evidence of record shows an approved Certificate of Unsuitability for Reenlistment authorized the entry recorded in section 10 of the applicant's DA Form 24.  In addition, at the time the company commander rated the applicant's conduct and efficiency as "unsatisfactory."  Thus, deletion of the "excellent" conduct and efficiency ratings in section 4 of his DA Form 24 for the period of his assignment to the unit from 20 June 1963 through 30 August 1964 was appropriate.  Therefore, the applicant is not entitled to correction of his DA Form 24.

3.  A careful review of the applicant's entire record of service shows:

	a.  He received "excellent" conduct and efficiency ratings during the period 12 March 1962 through 19 June 1963.

	b.  He was barred from reenlistment on 31 January 1964 based on his unsatisfactory performance.

	c.  There is no record of adverse information subsequent to 31 January 1964.

	d.  He received conduct and efficiency ratings of "good" subsequent to being barred from reenlistment.

	e.  He was promoted to private first class on 25 May 1964, less than 4 months after imposition of the bar from reenlistment.

	f.  He completed the full term of his 3-year active duty commitment on 11 March 1965.

	g.  Thus, the evidence of record shows the applicant demonstrated that he had been rehabilitated subsequent to the imposition of the bar from reenlistment.

4.  Notwithstanding the fact that the bar from reenlistment was not removed prior to the applicant's separation from active duty, the evidence shows he possessed the traits and habits required of a Soldier.  Therefore, considering all the facts of the case, it is concluded that the characterization of service is not equitable and he is entitled to correction of his records to show he was honorably discharged.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ____x____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 13a of his DD Form 214 the entry "under honorable conditions" and adding "honorable" and

   b.  issuing the applicant a DD Form 256A (Honorable Discharge Certificate), dated 11 March 1965, in lieu of the General Discharge Certificate of the same date now held by the applicant.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his DA Form 24.



      ____________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)                                         AR20100013650



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ABCMR Record of Proceedings (cont)                                         AR20100013650



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