IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017624 


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, in effect, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he received a special court-martial but it was reversed on appeal.  He also states he was issued a discharge that was characterized as under other than honorable conditions and he was not given a hearing before his discharge.

3.  The applicant 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 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 on 2 October 1964 for a period of 4 years.  He also had 10 months and 27 days of prior service.  He completed basic combat training and advanced individual training and he was awarded the military occupational specialty of 11B (Light Weapons Infantryman).

3.  The applicant was assigned to the 3rd Battalion, 68th Armor in Germany on 24 March 1965.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

* 17 June 1965, 19 July 1965, 5 September 1965, and 8 November 1965, for being absent from his unit
* 18 September 1965, for being absent from bed check

5.  On 11 March 1966, the applicant pled guilty and was found guilty by a summary court-martial of:

* being absent without leave (AWOL) from on or about 5 March 1966 to 
8 March 1966
* breaking restriction on 8 March 1966

6.  On 25 April 1966, the convening authority remitted the unexecuted portion of the applicant's sentence.

7.  On 7 May 1966, before a special court-martial, the applicant:

* pled guilty and was found guilty of failure to go to his appointed place of duty
* pled not guilty and was found guilty of failure to obey a lawful command from a commissioned officer

8.  His sentence consisted of confinement at hard labor for 6 months, reduction to private E-1, and a forfeiture of $83 pay for 6 months.  The convening authority approved the sentence.  On 28 June 1966, the convening authority set aside the findings of guilty to the second charge and so much of the sentence as was in excess of confinement at hard labor for 1 month, a forfeiture of $83 pay for 
1 month, and reduction to the grade of private.  


9.  On 27 June 1966, the applicant's commander recommended that he be eliminated from the service because he had been unable to respond to guidance given to him and he had not made any attempt to improve himself.  The commander stated the applicant had the capability but did not utilize it.

10.  On 20 June 1966, the applicant received a psychiatric examination by the battalion surgeon.  The examiner stated the applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.

11.  On 8 July 1966, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him for unfitness.  The applicant waived consideration by a board of officers and a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.

12.  The applicant acknowledged that as the result of issuance of an undesirable discharge under other than honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

13.  On 17 August 1966, the appropriate authority waived rehabilitative transfer and directed that the applicant be issued an Undesirable Discharge Certificate.

14.  On 9 September 1966, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities with an Undesirable Discharge Certificate.  He had completed 1 year, 7 months, and
16 days of active service that was characterized as under other than honorable conditions.  He had 115 days of lost time. 

15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

16.  Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

17.  Army Regulation 635-200 (Personnel Separations) currently sets forth the basic authority 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.

18.  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 contends his undesirable discharge should be upgraded to an honorable discharge.  He contends his special court-martial was reversed on appeal and he did not receive a hearing prior to his discharge.

2.  The convening authority for the applicant's special court-martial only set aside that portion of the conviction that pertained to the charge of failure to obey a lawful command from a commissioned officer and a portion of the sentence.  The remaining charge and sentence were approved by the convening authority.

3.  In paragraph 3 of the applicant's statement, dated 8 July 1966, he indicated he waived his right to a hearing before a board of officers.  Therefore, the fact that he did not receive a hearing was due to his own choice.

4.  It is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  The applicant accepted NJP on five occasions and his record of service included convictions by one summary court-martial and one special court-martial. He also had 115 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant’s record of service is insufficiently meritorious to warrant a general discharge or honorable 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)                                         AR20100017624



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ABCMR Record of Proceedings (cont)                                         AR20100017624



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