IN THE CASE OF:	  

		BOARD DATE:	    12 July 2011

		DOCKET NUMBER:  AR20110000041 


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 under conditions other than honorable discharge to honorable.

2.  He has not provided a statement. 

3.  He provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), a letter from a former employer and 10 letters of support.

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.  Following a period of service in the Army National Guard and U.S. Army Reserve, the applicant enlisted in the Regular Army (RA) on 19 June 1961.  He was honorably discharged on 19 March 1964 to immediately reenlist.
3.  His record shows that after he reenlisted on 20 March 1964, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from bedcheck on 29 March and 30 May 1964 and being absent without proper authority from battalion formation on 30 May 1964.

4.  Special Court-Martial Order Number 11, issued by Headquarters, 1st Battalion, 94th Artillery, dated 24 June 1964, shows he was found guilty of:

* failing to go at the time prescribed to his appointed place of duty on 1 June 1964
* going from his appointed place of duty without proper authority on 2 June 1964
* absenting himself from his unit without proper authority from 3 to 9 June 1964
* failing to go at the time prescribed to his appointed place of duty on 16 June 1964

He was sentenced to confinement at hard labor for 30 days, reduction to the lowest enlisted grade, and forfeiture of $50 per month for 4 months.  Special Court-Martial Order Number 16, issued by the same headquarters on 18 July 1964, suspended the unexecuted portion of his sentence to confinement at hard labor.

5.  An AE Form 3087 (Report of Psychiatric Evaluation) shows he was examined by an Army psychiatrist on 29 July 1964.  The psychiatrist diagnosed him with chronic alcoholism and found his condition was not amenable to retraining, reclassification, transfer, disciplinary action, or psychiatric treatment as could be afforded by the military.  He recommended the applicant be administratively separated under the provisions of Army Regulation 635-209 because of unsuitability.  

6.  Special Court-Martial Order Number 22, issued by Headquarters, 1st Battalion, 94th Artillery, dated 5 August 1964, shows he was found guilty of wrongfully appropriating a 3/4 ton truck that was the property of the U.S. Government on 24 July 1964 and absenting himself from his unit without proper authority from 24 to 25 July 1964.  He was sentenced to be confined at hard labor for 6 months and to forfeit $75 per month for 6 months.  

   a.  Special Court-Martial Order Number 21, issued by Headquarters, 4th Armored Division, dated 18 August 1964, set aside the portion of the sentence in excess of forfeiture of $73 per month for 6 months, but did not set aside the portion of the sentence pertaining to confinement.
   b.  Special Court-Martial Orders Number 25, issued by Headquarters, 1st Battalion, 94th Artillery, dated 16 September 1964, remitted the unexecuted portion of his sentence to confinement at hard labor.

7.  On 14 August 1964, he acknowledged notification that he was being recommended for discharge under the provisions of Army Regulation 635-208 for unfitness.  He acknowledged he could receive an Undesirable Discharge Certificate and waived his right to a hearing before a board of officers, to submit a written statement on his own behalf, and his right to counsel.  He indicated he understood that an undesirable discharge would be under conditions other than honorable and as a result he could be deprived of many or all rights as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  

8.  A Medical Officer's Report, dated 24 August 1964, shows he was found to be mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  

9.  On 28 August 1964, the separation authority approved his discharge for unfitness under the provisions of Army Regulation 635-208 and directed he receive an Undesirable Discharge Certificate.  On 29 September 1964, he was discharged accordingly with his service characterized as under conditions other than honorable.  The DD Form 214 completed at the time shows he completed 3 years, 7 months, and 6 days of total active service, with 78 days of time lost during his final term of service.  

10.  He provides:

	a.  a letter from a former employer confirming he was employed on an intermittent basis as a truck driver from 13 May 1976 to 9 September 2005 and

	b.  Ten letters of support with identical text signed by 10 individuals attesting to his character, work ethic, good citizenship, and maturity.

11.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d), enuresis, (e) chronic alcoholism; and (f) Class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.  Otherwise, return to duty or refer for separation under the provisions of Army Regulation 635-208 was directed.

12.  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.

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

   a.  Paragraph 3-7a provides that an honorable discharge (HD) 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 (GD) 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 evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.
3.  His record during his second term of RA service includes NJP for unauthorized absences and two convictions by special court-martial for unauthorized absences and wrongful appropriation of U.S. Government property.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD or a GD.

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)                                         AR20110000041





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ABCMR Record of Proceedings (cont)                                         AR20110000041



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