IN THE CASE OF:
BOARD DATE: 25 January 2011
DOCKET NUMBER: AR20100019193
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 be upgraded to a general under honorable conditions discharge.
2. The applicant states he was too young, immature, and undisciplined to make wise decisions. He adds that he is nearing 70 years of age and needs help with medical and other health issues. His only source of income is social security.
3. 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 enlisted in the Regular Army on 11 March 1959 and upon completion of initial entry training was awarded military occupational specialty 321.00 (Lineman).
3. He was convicted by a special court-martial on 5 September 1961 of being absent without leave (AWOL) during the period 11 July 1961-7 August 1961. He was again convicted by a special court-martial on 20 December 1961 of being AWOL during the period 9-23 November 1961.
4. On 16 December 1961, his commander initiated action to eliminate him from the service under the provisions of Army Regulation 635-208 (Personnel Separations Discharge Unfitness) for misconduct. His commander stated the applicant was considered unfit for further service due to his record of misconduct.
5. On 12 January 1962, he consulted with counsel and was notified he was recommended for discharge and that he be furnished an Undesirable Discharge Certificate. He waived his right to counsel, consideration of his case by a board of officers, and elected not to submit a statement in his own behalf.
6. On 7 February 1962, the separation authority approved his separation under the provisions of Army Regulation 635-208 and directed he receive an undesirable discharge. On 14 February 1962, he was discharged accordingly.
7. His DD Form 214 shows he completed 2 years, 4 months, and 17 days of active duty service and accrued 202 days of lost time.
8. Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character. Paragraph 2 provided for the separation of personnel for unfitness when there was evidence of an antisocial or amoral trend, chronic alcoholism, drug addiction, pathological lying, or misconduct. An undesirable discharge was normally considered appropriate.
9. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
10. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his undesirable discharge should be upgraded because he was too young, immature, and undisciplined to make wise decisions was carefully considered.
2. The evidence of record shows he had an extensive disciplinary history that included two separate special court-martial convictions. The evidence also confirms that his discharge processing was accomplished in accordance with the applicable regulation. All requirements of law and regulations were met and his rights were fully protected throughout the separation process.
3. His overall record of service and extensive disciplinary history did not support the issuance of a general under honorable conditions discharge at the time of his discharge and does not support an upgrade now. Additionally, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for medical benefits.
4. In view of the forgoing, the applicant's request should be denied.
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) AR20100019193
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ABCMR Record of Proceedings (cont) AR20100019193
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