IN THE CASE OF:	   

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018004 


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.

2.  He states he would appreciate an upgrade of his discharge.  He adds that following high school, he joined the U.S. Marine Corps Reserves (USMCR).  He completed basic training at Parris Island, SC; then he completed individual combat and advanced combat training at Camp Lejeune, NC.  Following his completion of active duty training, he returned home and eventually enlisted in the Regular Army (RA).

3.  He further states that upon enlistment in the RA, he was assigned to Battery A (Enlisted Staff and Faculty), School Support Command, U.S. Army Air Defense School, Fort Bliss, TX.  He found this assignment to be very boring and requested to be transferred, but his request was denied.  He tried to go against the system in order to force them to transfer him and all it got him was a lot of trouble and stockade time.  When he received a general discharge (sic - he received an undesirable discharge), he realized a person could not go against the system and get what they want.  It served as a very good lesson to him.

4.  He continues that he got a job with General Motors Corporation (GMC) and he retired after 30 years as an industrial electrician.  Since retirement, he has had his own small business repairing computers.

5.  He provides copies of:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* an Authorization of Monthly Benefits for a GMC Hourly-Rate Employee's Pension Plan
* a diploma for completion of the Electrician "Engineer In Training" course conducted by International Correspondence Schools
* a certificate of completion for the Honeywell IPC 620 Level II course conducted by Hi-Tech Electric Systems Group
* a certificate of completion for the Static Stepless Control course conducted by Harnischfeger Institute

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 record shows that following a period of honorable service in the USMCR, he enlisted in the RA on 24 February 1961.  Upon completion of initial entry training, he was awarded military occupational specialty 622.10 (Engineer Equipment Repairman).

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions for departing his unit in an absent without leave (AWOL) status.

4.  His record reveals his disciplinary history also includes conviction by special court-martial on three occasions for violation of Article 86, UCMJ, for departing his unit in an AWOL status on five separate occasions.

5.  On 22 April 1963, the applicant's unit commander notified him he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-208 (Personnel Separations - Unfitness, Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) for unfitness with an undesirable discharge characterized as under other than honorable conditions.

6.  He was advised of his rights and the impact of the discharge.  He declined his right to consult with legal counsel and waived his right to submit a statement in his own behalf and to have a hearing before a board of officers.

7.  On 22 April 1963, the unit commander recommended his separation from the service for unfitness with issuance of an undesirable discharge.  The intermediate commander reviewed the proposed discharge action and recommended approval.

8.  On 8 May 1963, the separation authority approved the request and directed that the applicant be discharged as a private (PV1)/E-1 under the provisions of Army Regulation 635-208 with issuance of an Undesirable Discharge Certificate.

9.  On 17 May 1963, he was discharged accordingly.  His DD Form 214 shows:

* he was discharged under the provisions of Army Regulation 635-208 with a Separation Program Number (SPN) of 28B [Unfitness, Frequent Incidents of a Discreditable Nature with Civil or Military Authorities]
* his service was characterized as under other than honorable conditions
* he was issued an Undesirable Discharge Certificate
* he had 350 days of time lost due to AWOL and confinement
* he completed 1 year, 3 months, and 8 days net active service this period
* he held the rank/grade of PV1/E-1 at the time of his discharge from active duty

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

11.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for frequent incidents of a discreditable nature was warranted, an undesirable discharge was normally issued.

12.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The fact that he had a short period of honorable service in the USMCR and that he has had a productive life since he was discharged are duly noted.  However, they do not eradicate the fact that he had a pattern of misconduct during the period in question.

3.  His record reveals a disciplinary history that includes acceptance of NJP under the provision of Article 15, UCMJ, on two occasions and conviction by special court-martial on three occasions.

4.  The evidence shows he was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

5.  Based on his record of indiscipline, he is not entitled to an upgrade of his 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)                                         AR20100018004



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ABCMR Record of Proceedings (cont)                                         AR20100018004



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