IN THE CASE OF:	  .

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002854 


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 a general discharge or honorable discharge. 

2.  The applicant states:

* a clear and unmistakable error was made on the part of the government
* he was court-martialed for assaulting a noncommissioned officer (NCO) (platoon sergeant), but he had a splintered left ring finger which made it impossible to commit the assault
* he submitted an application to the Army Discharge Review Board (ADRB) in 1975, but he was never advised of the decision
* he is in need of medical assistance for a service-connected disability

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter from the American Legion requesting the status of his ADRB 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's records show he was inducted into the Army on 26 July 1961.  Records show that he completed basic field artillery training.  The highest rank he attained while serving on active duty was private first class/pay grade 
E-3.

3.  Evidence of record shows the applicant received nonjudical punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 5 August 1962, for being disorderly in the barracks
* 1 September 1962, for being absent without leave (AWOL) (pass violation) and violation of a lawful general order (uniform violation)
* 6 January 1963, for disorderly conduct

4.  On 2 November 1961, a summary court-martial found the applicant guilty of being absent from his unit without proper authority from 25 to 31 October 1961.

5.  On 22 January 1963, a special court-martial found the applicant guilty of assault by assuming a threatening position, i.e., clenching his fists as if to strike a superior noncommissioned officer (NCO), disobeying a lawful order, and using disrespectful language towards a superior NCO.

6.  On 4 February 1963, the applicant underwent a psychiatric evaluation which found him to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

7.  On 21 February 1963, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge) for unfitness.  The basis for this action was the applicant's court-martial conviction, numerous Article 15s, and several negative counselings.

8.  Records reflect the applicant consulted counsel and requested a hearing by a board of officers.  On 10 April 1963, a board of officers recommended the applicant's discharge based on frequent incidents of a discreditable nature with superior NCOs.
9.  On 18 April 1963, the applicant was found guilty by a summary court-martial of violating the conditions of his parole (leaving his assigned place of duty without proper authority).

10.  On 1 May 1963, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-208 and directed the issuance of an undesirable discharge.  On 15 May 1963, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged for unfitness.  He completed 1 year and 6 months of creditable active service during this period with 113 days lost.

11.  On 17 December 1976, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

12.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included repeated petty offenses/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.  

13.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, 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.  

14. 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.  The applicant's request for an upgrade of his undesirable discharge to a general or honorable discharge based on a clear and unmistakable government error was carefully considered; however, there is insufficient evidence to support his request.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant’s military records show he committed numerous offenses that led to his discharge.  His record includes evidence that he received nonjudicial punishment and conviction by court-martial on numerous occasions.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general or honorable discharge.

4.  The ABCMR does not grant requests for an upgrade of a discharge solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for Department of Veterans Affairs (VA) benefits should be addressed to the VA.

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)                                         AR20110002854



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ABCMR Record of Proceedings (cont)                                         AR20110002854



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