IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100019957 


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 discharge.

2.  The applicant states his discharge should be upgraded based on the passage of time, the nature of his service, and the nature of his discharge. 

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's records show he enlisted in the Regular Army for a period of 3 years on 6 August 1964.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his period of military service was private first class (PFC)/E-3.  

3.  His records show he was awarded the Parachutist Badge, Armed Forces Expeditionary Medal, and Combat Infantryman Badge.  

4.  On 18 October 1965, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 14 August to 10 September 1965.  The court sentenced him to confinement at hard labor for 6 months and a reduction to private (PV1)/E-1.  The convening authority approved only that portion of the sentence that provided for confinement at hard labor for 4 1/2 months, hard labor without confinement for 45 days, and reduction to PVT/E-1 on 18 October 1965.

5.  On 2 November 1965, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of extra duty.

6.  On 21 July 1966, he was convicted by a special court-martial of two specifications of being AWOL from 15 January to 26 March 1966 and 19 to 21 April 1966.  The court sentenced him to confinement at hard labor for 
6 months and a forfeiture of $65.00 pay for 6 months.  The convening authority only approved that portion of the sentence that provided for a forfeiture of $35.00 pay for 6 months and confinement at hard labor for 6 months on 25 July 1966.

7.  On 25 July 1966, the applicant’s immediate commander recommended that the applicant be discharged from military service under the provisions of Army Regulation 635-208 (Personnel Separations), for unfitness, citing his prior misconduct to include his court-martial convictions and his AWOL offenses.  The immediate commander recommended the issuance of an Undesirable Discharge Certificate. 

8.  On 25 July 1966, the applicant acknowledged 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 if an under other than honorable conditions discharge was 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 waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

9.  On 25 July 1966, the interviewing officer indicated that he personally interviewed the applicant and discussed his pending separation action.  He remarked that the applicant had rejected all attempts at rehabilitation.  He was immature and possessed poor judgment in all his actions.  He showed little motivation for further service.  

10.  On 25 and 29 July 1966, the applicant's immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

11.  The separation authority approved the applicant's elimination from the Army under the provisions of Army Regulation 635-208 and directed that he be furnished an Undesirable Discharge Certificate.  

12.  On 15 August 1966, the applicant was accordingly discharged.  The
DD Form 214 he was issued at the time confirms he was discharged in accordance with Army Regulation 635-208 and issued an Undesirable Discharge Certificate.  This form further shows the applicant completed 1 year, 4 months, and 3 days of creditable active military service and he had 222 days of lost time.

13.  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 limitation. 

14.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, 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 a general or an honorable discharge.

15.  Army Regulation 635-200 (Personnel 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. 


16.  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 due to the passage of time was carefully considered but it was found without merit.  The Army has never had a policy where a member's discharge is automatically upgraded due to the passage of time and/or good behavior.  

2.  The applicant's records reveal a disciplinary history which includes multiple instances of being AWOL, court-martial convictions, and one instance of nonjudicial punishment.  Accordingly, his immediate commander initiated separation action against him.  His discharge was processed in accordance with applicable regulations and 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.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100019957



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ABCMR Record of Proceedings (cont)                                         AR20100019957



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