IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100026065 


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 discharge.

2.  The applicant states he did not understand the ramifications of the discharge he was accepting due to his age and ignorance of the situation and he is concerned about the impact his discharge will have on his grandchildren.

3.  The applicant provides no additional evidence with his application.

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 at 17 years of age with parental consent in Denver, Colorado, on 24 March 1959 for a period of 3 years.  He completed basic training at Fort Leonard Wood, Missouri, and advanced individual training as an armor crewman at Fort Knox, Kentucky.  He was transferred to Fort Lewis, Washington, for assignment to an armor company.

3.  On 7 March 1960, he was absent without leave (AWOL) and remained absent until he was returned to military control at Fort Carson, Colorado, on 10 May 1960 where charges were preferred against him.

4.  On 17 May 1960, he underwent a psychiatric evaluation and was determined to be free from disabling mental diseases, defect, or derangement; he could distinguish right from wrong and was able to adhere to the right; and he understood the nature of his offenses.  The applicant conveyed to the examining psychiatrist that he joined the Army to escape charges of petty larceny and was on probation for 18 months for petty larceny and running away from home.  He also claimed that while on leave he had been arrested and convicted of grand larceny and spent 5 weeks in a civilian jail.  He was placed on probation for 2 years.  The examining psychiatrist recommended that the applicant be separated under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) by reason of defects of character which rendered him undesirable in the military setting.

5.  On 8 June 1960, he was convicted by a special court-martial of being AWOL from 7 March to 9 May 1960.  He was sentenced to confinement at hard labor for 2 months, a forfeiture of pay, and reduction to pay grade E-1.

6.  On 10 June 1960, the applicant's commander initiated action to separate him from the service under the provisions of Army Regulation 635-208 for unfitness based on his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He cited the applicant's AWOL record, disciplinary record, and an established pattern of shirking as the basis for his recommendation.

7.  The applicant declined the opportunity to consult with counsel, waived his rights, and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge and directed that the applicant be furnished an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on 22 June 1960 under the provisions of Army Regulation 635-208 due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He completed 11 months and 27 days of total active service.

10.  There is no evidence in the available records to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

2.  The applicant's contentions have been noted.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of 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 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)                                         AR20100026065



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ABCMR Record of Proceedings (cont)                                         AR20100026065



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