IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100015127 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he went absent without leave (AWOL) because his mother was sick and his stepfather was mistreating her.

3.  The applicant did not provide any evidence.

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 records show he enlisted in the Regular Army for a period of 3 years on 13 August 1959 and held military occupational specialty 642.10 (Heavy Vehicle Driver).  The highest rank/grade he attained during his military service was private/E-2.

3.  On 8 June 1960, he pled guilty at a special court-martial to two specifications of being AWOL from 15 to 27 April 1960 and 3 May 1960 to 1 June 1960.

4.  On 9 December 1960, he again pled guilty at a special court-martial to one specification of being AWOL from 6 September 1960 to 7 November 1960.

5.  On 12 December 1960, his immediate commander recommended his separation from the Army under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character) by reason of unfitness.  He commented that the applicant had been a chronic malcontent, ill-motivated for responsible military service and his disgraceful record left no grounds for recommendation other than an undesirable discharge.  His conduct and efficiency had been unsatisfactory.  Despite numerous counseling efforts, he failed to develop into a worthwhile Soldier and should be eliminated.

6.  On 12 December 1960, he acknowledged receipt of the notification of his pending separation action.  He indicated he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel, but he elected to decline.  He also acknowledged he understood that if an under other than honorable conditions discharge were issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He further waived his right to a board of officers and to appear before a board of officers and he declined to submit a statement on his own behalf.

7.  On 14 December 1960, he underwent a psychiatric evaluation during which he stated he went home on a weekend and decided to stay.  There was no indication he suffered from any psychiatric problems and was therefore cleared for administrative separation.

8.  On 27 December 1960, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-208 by reason of unfitness.  This was followed by a recommendation of approval of the applicant's elimination from the service by his battalion commander.

9.  On 29 December 1960, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-208 by reason of unfitness and directed that he be furnished an Undesirable Discharge Certificate. 
On 5 January 1961, the applicant was accordingly discharged from the Army.

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms he completed 9 months and 29 days of creditable active military service and he had 206 days of lost time.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

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.  The applicant's contention that his discharge should be upgraded was carefully considered.  However, there is insufficient evidence to grant him the requested relief.

2.  His records reveal a disciplinary history which includes two courts-martial for multiple instances of AWOL.  Accordingly, his chain of command recommended his elimination from the Army.  His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  There is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his extensive misconduct was a result of his mother's illness.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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)                                         AR20100015127



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ABCMR Record of Proceedings (cont)                                         AR20100015127



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