IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100028599 


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 clemency and that his undesirable discharge be upgraded to an honorable discharge.

2.  He states that:

   a.  he enlisted at age 17 which was an impressionable age, and he intended to make the Army a career;
   
   b.  while in Thailand a senior noncommissioned officer (NCO) thought he was having other than a platonic relationship with his spouse and he started a vendetta against him;
   
   c.  the court-martial was retaliatory action for fraternizing with a senior NCO's spouse.  As a result he received an undesirable discharge upon his return to Schofield Barracks, Hawaii;
   
   d.  he believes the appropriate punishment would have been an Article 15, but the NCO convinced the commanding officer to pursue a special court-martial against him, ruining any chances he had at salvaging his career;

e.  he was not educated enough to seek proper counsel and he was not
aware of the impact the action would have on his civilian life; and

   f.  he has not tried to have his discharge upgraded in 47 years because he was ashamed of the memories.
3.  He provides:

* A self-authored statement
* Special Court-Martial Order Number 12

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 was born on 15 July 1943 and enlisted in the Regular Army on 3 August 1960 at age 17.

3.  His DA Form 24 (Service Record) shows:

* he served from 3 August 1960 through 27 August 1963
* Section 5 (Service Outside Continental U.S.) shows: 

* 22 December 1960 to 13 June 1962 - Hawaii
* 16 June 1962 to 25 October 1962 -Thailand
* 26 October 1962 to 27 August 1963 - Hawaii

* Section 6 (Time Lost) shows: 

* 15 to 17 September 1961 - he was absent without leave (AWOL)
* 24 October to 15 November 1962 - in confinement
* 20 March to 19 August 1963 - in confinement

4.  On 23 October 1962, he was convicted by a summary court-martial of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL on 9 October 1962 and violating Article 134 on 18 October 1962 for breaking restriction.

5.  On 20 March 1963, he was convicted by a special court-martial of violating Article 86 and Article 92 of the UCMJ for failure to go to his appointed place of duty on 2 March 1963 and two specifications of failure to obey a lawful order on
1 and 2 March 1963.

6.  He also has lost time from 20 March to 19 July 1963.

7.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the available evidence does include a properly-constituted DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) which shows he was discharged on 27 August 1963 under the provisions of Army Regulation 635-208 with an undesirable discharge.
This DD Form 214 also shows:

* he was assigned a separation program number of 28B (Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities)
* he had 179 days of time lost due to being AWOL and in confinement
* he completed 2 years, 6 months, and 26 days of creditable active service during this period
* he held the rank/grade of private/E-1 at the time of discharge

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing it does contain a properly-constituted
DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge.

2.  The applicant was not discharged based on one incident.  He was discharged based 179 days of lost time due to being AWOL and two periods of confinement, one summary court-martial, and one special court-martial during his active service.

3.  The available evidence shows he was 17 years of age at the time of enlistment and he was age 19 at the time of his offenses.  However, there is no evidence that indicates his senior NCO contributed to his acts of misbehavior or misconduct.  In fact, his first period of AWOL and breaking restriction occurred prior to him going to Thailand.

4.  The ABCMR is not an investigative body but rules on cases brought legally before it based on the evidence of record and whether an error or an injustice exists in that record.  The rule of law pertinent to the Board provides for consideration of all cases with the presumption of administrative regularity, and that applicants have the burden of proving an error or injustice by a preponderance of the evidence.  The necessary presumption of regularity dictates that what action was taken by the Army was appropriate unless evidence submitted by the applicant may show or convince the Board otherwise.

5.  In the absence of evidence to the contrary, the available evidence supports that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  






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)                                         AR20100028599



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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