IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20110001045 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he believes that he should have an honorable discharge because his father was killed in action during World War II (WWII), on 
7 September 1944.

3.  The applicant did not provide any documentation in support of his request.

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 (RA) on 12 May 1961 for a period of 3 years.  He successfully completed the training requirements and he was awarded military occupational specialty (MOS) 11E, Armor Crewman.  He was promoted to Specialist Four/E-4 on 22 October 1963.  He was honorably discharged on 22 October 1963 for the purpose of immediate reenlistment.  On 23 October 1963, he reenlisted in the RA for 6 years and in MOS 11E.

3.  On 15 November 1963, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for dereliction in the performance of his duties.  His punishment included a forfeiture of $35.00 pay for 
1 month, 14 days of restriction, and an oral reprimand.  He did not appeal his punishment.

4.  Headquarters, 1st Battalion, 37th Armor, Germany, Special Court-Martial Order Number 7, dated 4 March 1964, shows the applicant was convicted at a special court-martial of three specifications of misconduct on 2 March 1964.  He pled guilty and he was found guilty of the following:  

   a.  assaulting a noncommissioned officer (NCO), by striking him in the face with his hand;  

   b.  disobeying a lawful order from an NCO to buff the floor in building #27, McKee Barracks, Crailsheim, Germany; and
   
   c.  disobeying a lawful order from an NCO to report to the first sergeant in the orderly room at McKee Barracks, Crailsheim, Germany.

5.  He was sentenced to serve 6 months in confinement and a forfeiture of $40.00 pay for 6 months.  The stockade in Stuttgart, Germany was his designated place of confinement.  

6.  On 19 August 1964, he was reassigned to Headquarters Detachment, U.S. Army Garrison, Fort Stewart, Georgia in a duty Soldier status.

7.  Headquarters, U.S. Army Armor and Artillery Firing Center, Fort Stewart, Georgia, Summary Court-Martial Order Number 3, shows that on 6 April 1965   he was convicted of being drunk and disorderly in a public place on or about       4 March 1965.  He was sentenced to reduction to private/E-2 and a forfeiture of $50.00 pay for 1 month. 



8.  He received NJPs under Article 15, UCMJ, between 8 December 1964 and   18 March 1965.

   a.  On 8 December 1964, he failed to report to his appointed place of duty, to wit:  Reveille formation.  His punishment consisted of restriction to the detachment area for 7 days and 7 days of extra duty (to run concurrently from 
8 -14 December 1964).  He did not appeal this punishment.

   b.  On 12 February 1965, he failed to report to his appointed place of duty, to wit:  Bed check.  His punishment consisted of restriction for 7 days and 7 days of extra duty (to run concurrently from 12-18 February 1965).  He did not appeal this punishment.

9.  On 18 March 1965, he was convicted by a summary court-martial of being drunk and disorderly in a public place on or about 4 March 1965.  He was sentenced to hard labor without confinement for 30 days, a forfeiture of $50.00 pay for 1 month, and reduction to pay grade E-2.

10.  It appears the applicant left his unit in an absent without leave (AWOL) status on or about 12 May 1965.  He was dropped from the rolls of his unit at Fort Stewart, Georgia and considered to be in a deserter status on 10 June 1965.

11.  On 11 August 1965, he was returned to military control at Fort Campbell, Kentucky, by civil authorities from Tullahoma, Tennessee.

12.  On 8 September 1965, while being detained at the Post Stockade on Fort Campbell, Kentucky, he underwent a physical and psychiatric evaluation at the military hospital.  The psychiatrist stated that the essential points of his mental condition were:  Passive-aggressive personality, chronic, severe, manifested by a sullen negativistic attitude, repeated displays of rebellious unacceptable behavior, failure to abide by the rules and regulations of the military and by impaired judgment and insight.  Stress:  none-routine duty.  Pre-disposition: marked – long history of same adjustment.  Impairment:  marked for continued duty.  He also stated that there was no disqualifying mental defect sufficient to warrant disposition through mental channels.  The psychiatrist cleared the applicant for administrative separation.  The psychiatrist stated that his diagnosis and the applicant’s lack of motivation to change rendered him an undesirable Soldier and he should be expeditiously separated under the appropriate administrative regulation.



13.  Headquarters, Special Troops, Fort Campbell, Kentucky, Summary Court-Martial Order Number 317, dated 27 September 1965, shows he was charged with and found guilty of being AWOL from his unit, to wit:  Headquarters Detachment, U.S. Army Garrison, located at Fort Stewart, Georgia, from on or about 12 May to 11 August 1965.

14.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of $80.00 pay for 6 months and to be reduced to private/E-1. 

15.  On 27 September 1965, the convening authority approved the sentence with revisions.  His sentence was revised to state: a forfeiture of $50.00 pay for
6 months, confinement at hard labor for 6 months, and reduction to the rank of private/E-1.  The applicant was committed to confinement at the Post Stockade, Fort Campbell, Kentucky.  Two previous convictions were considered.  

16.  On 29 September 1965, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of Army Regulation 635-208.  On the same date the applicant acknowledged he had been notified of the pending separation action against him and that he had been given the opportunity to obtain counsel and consideration for a personal appearance before an administrative separation board, in which he declined.  He also declined to submit a statement in his own behalf.  

17.  He also acknowledged he understood that in the event of the issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life. 

18.  On 29 September 1965, the applicant's commander recommended that the applicant be separated from the Army in accordance with Army Regulation
635-208 and furnished an undesirable discharge.  The commander stated that the action was being taken because of the applicant's repetitive misconduct, being AWOL, and his negative attitude.  The commander also stated there was no indication that his misconduct was due to a disqualifying mental or physical defect or deficiency. 

19.  On 5 October 1965, the Commander, 101st Airborne Division, Fort Campbell, Kentucky, directed that the applicant be reduced to private/E-1 and discharged under the provisions of paragraph 3, Army Regulation 635-208, with an Undesirable Discharge Certificate. 

20.  Special Court-Martial Order Number 338, dated 8 October 1965, shows the unexecuted portion of his sentence to confinement at hard labor for 6 months was remitted effective 11 October 1965. 

21.  The applicant's DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) shows he was discharged on 12 October 1965 in accordance with Army Regulation 635-208 with an Undesirable Discharge Certificate.  At the time he had completed 4 years, 5 months, and 3 days total active service.  Item 32 (Remarks) shows he had a total of 174 days of lost time.

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

23.  Army Regulation 635-208, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character.  An individual was subject to separation under the provisions of this regulation when it was determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a Soldier discharged for unfitness was normally furnished an Undesirable Discharge Certificate.

24.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 3, 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.  Chapter 3, paragraph 3-7b, provides that an under honorable conditions discharge 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 contends his undesirable discharge should be upgraded because his father was killed in action during WWII on 7 September 1944.

2.  His record reveals an extensive history of misconduct that included four instances of punishment under the UCMJ, including being absent without leave and desertion.

3.  The evidence of record shows the applicant was convicted at a special court-martial and also at three summary courts-martial.  In addition, he had a total of 
174 days of lost time.  These are clear and demonstrable reasons which justify an undesirable discharge.  Therefore, it is concluded that the applicant's overall quality of service did not meet the standards of acceptable conduct and performance for Army personnel and he is not entitled to a general or an honorable discharge.  

4.  The evidence shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process

5.  In the absence of evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  The available evidence makes no reference to the applicant's father, nor is there evidence that the applicant's indiscipline was caused by the death of his father. 

7.  Therefore, in view of all of the foregoing, 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)                                         AR20110001045



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ABCMR Record of Proceedings (cont)                                         AR20110001045



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