IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100017845 


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 (UD) be changed to "under conditions other than dishonorable" (a Department of Veterans Affairs term used in establishing entitlement to veterans' benefits).  This has been accepted as a request to upgrade the applicant's UD to a general or honorable discharge.

2.  The applicant states his discharge was the result of his alcohol dependence and not violations of law.  He contends that under today's standards he would be offered substance abuse counseling and be allowed to finish his enlistment.

3.  In a letter to his elected representative, the applicant stated that his wife passed away and the National Cemetery Administration will not bury her at the National Cemetery unless his discharge is upgraded.

4.  The applicant provides 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's military records show he enlisted in the Regular Army on 19 February 1960 and was awarded the military occupational specialty of medical corpsman.

3.  Between 30 June 1960 and 11 March 1961, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three occasions for failure to report for a detail when told to do so, creating a disturbance in the barracks, and being absent without leave.

4.  The applicant was convicted by one special and three summary courts-martial for wrongfully appropriating a 1952 Chevrolet sedan, the property of a senior noncommissioned officer; disobeying a lawful order to get out of bed; disobeying a lawful order to not bring alcohol or intoxicating beverages in the barracks; wrongfully exposing his penis in an indecent manner to public view; and wrongfully urinating on the ground.

5.  On 24 April 1961, the applicant responded to his commander's notification of his intent to recommend his discharge for unfitness.  In his response, the applicant stated he understood he could receive a UD and as a result could be deprived of many or all rights as a veteran under both Federal and State Laws.  The applicant requested that a board of officers consider his case.

6.  On 5 May 1961, the applicant waived his right to a board of officers.

7.  The separation approval authority's action is not available; however, on 12 June 1961 the applicant was given a UD due to unfitness under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).

8.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  A UD was normally considered appropriate; however, in unusual circumstances a general or honorable discharge was authorized as directed by the convening authority.


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law., or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by one special and three summary courts-martial and accepted NJP on three occasions.  Such repeated misconduct certainly warranted a UD.

2.  The applicant appears to believe his repeated misconduct would be overlooked in today's Army and he would have been referred for alcohol rehabilitation.  This is not true.  A Soldier must be held accountable for any misconduct he commits, whether in 1961 or in 2011.

3.  While it is regrettable the applicant is not entitled to have his wife buried in a National Cemetery with his discharge characterization, his discharge was properly processed, he was told he could lose all veterans' benefits if he was issued a UD, and he opted to waive consideration by a board of officers.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20100017845



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ABCMR Record of Proceedings (cont)                                         AR20100017845



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