BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100020055 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states:

   a.  he was asked to take a discharge under other than honorable conditions after 2 years and 9 months of service;

   b.  he does not think he did anything that bad to warrant keeping the undesirable discharge on his record;

   c.  there was a sergeant (SGT)/E-5 who was jealous because he (the applicant) completed airborne training while he (the SGT) failed the course;
   
   d.  he is 66 years old and he would like a clean record.

3.  The applicant provides no additional documents.

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 25 January 1962 for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty 723.07 (Communications Center Specialist).

3.  The applicant’s DA Form 24 (Service Record) shows he was twice promoted to the rank of private first class (PFC)/E-3, on 3 January 1963 and 24 February 1964, and this was the highest rank/grade he attained while serving on active service.  It also shows he was reduced in rank on four separate occasions.

4.  Item 6 (Time Lost) of his DA Form 24 (Service Record) shows he accrued a total of 27 days of time lost due to being absent without leave (AWOL) and confinement.

5.  The applicant's record contains a DA Form 26 (Record of Court-Martial Conviction) which shows he was convicted by a summary court-martial (SCM) on four separate occasions for the reasons indicated:

* on 12 October 1962 for wrongfully appropriating a 1/4 ton truck and for violating a general regulation by operating a vehicle without a license
* on 21 November 1963 for being AWOL from 12 - 14 November 1963
* on an unknown date in 1964 for disobeying a lawful order from his superior commissioned officer on 6 August 1964
* on an unknown date in 1964 for being absent from his unit without authority on 24 October 1964 and 25 October 1964

6.  He accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 4 October 1963 for being found asleep on post and on 25 July 1964 for being derelict in the performance of his duties.

7.  On 10 September 1964, the applicant underwent a medical evaluation for the purpose of determining his physical and mental condition prior to administrative 

separation processing.  He was determined physically and mentally sound with no disqualifying defects sufficient to warrant his disposition through medical channels.

8.  On 9 October 1964, the applicant’s unit commander initiated action to eliminate him from service under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness), by reason of unfitness and recommended that the applicant receive an undesirable discharge.  The commander cited the applicant's unsatisfactory conduct and inefficiency, and disciplinary history, which included four court-martial convictions and two NJPs, as the basis for taking the separation action.

9.  The applicant acknowledged that he had been notified of the separation action pending against him and that he had been furnished a copy of the commanding officer's report and statements supporting the recommendation for discharge.  He further indicated that he was offered military counsel, but waived his right to counsel.  The applicant waived his right to a hearing by a board of officers and he elected not to submit statements in his own behalf.

10.  On 13 November 1964, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-208 and directed the issuance of an Undesirable Discharge Certificate.  On 4 December 1964, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant on the date of his discharge shows he completed 2 years, 9 months, and 14 days of total active service.  It also shows he accrued 27 days of time lost due to AWOL and confinement.

12.  On 29 March 1982, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

13.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or 

assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

14.  Army Regulation 635-200 (Personnel Separations) currently provides the Army's enlisted administrative separation policy.

   a.  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.

   b.  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 evidence of record shows the applicant had an extensive disciplinary history that included four separate SCM convictions and two records of NJP.  His discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant’s record documents no acts of valor or significant service warranting special recognition and as a result his discharge accurately reflects his overall record of undistinguished service.  His overall record of service and extensive disciplinary history did not support the issue of a general or an honorable at the time of his discharge, and does not support an upgrade at this time.

3.  The ABCMR does not upgrade discharges based solely on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  In view of the forgoing, 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 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)                                         AR20100020055



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ABCMR Record of Proceedings (cont)                                         AR20100020055



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