BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110003298 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he was a good enlisted man and he made some bad choices in his decisions.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 on 24 August 1960 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 112.10 (infantry indirect fire crewman).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  The applicant received nonjudicial punishment under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) for negligently leaving his place of duty without designating proper supervision on 18 October 1964.

4.  The applicant was convicted by a special court-martial on 2 December 1964 of being absent without leave (AWOL) from 31 October 1964 to 10 November 1964 and from 12 November 1964 to 13 November 1964.

5.  The applicant was convicted by a summary court-martial on 26 March 1965 of being AWOL from 20 February 1965 to 26 February 1965.

6.  On 19 April 1965, the applicant's commander notified him that separation action was being initiated against him which could result in his separation from the Army under the provisions of Army Regulation 635-208 (Personnel Separation - Unfitness - Frequent Incidents of a Discreditable Nature with Civil or Military Authorizes) for frequent breaches of conduct and discipline, untrustworthiness, and repeated AWOLs.

7.  On 20 April 1965, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects and the rights available to him, he acknowledged he understood that if he was issued an undesirable discharge he could expect to encounter substantial prejudice in civilian life.  He elected not to submit statements in his own behalf and he did not desire counsel.

8.  On 22 April 1965, the applicant's intermediate commander recommended approval of the discharge action with an Undesirable Discharge Certificate.

9.  On 27 April 1965, the separation authority (a major general) approved the applicant's discharge under the provisions of Army Regulation 635-208 and directed the applicant be issued an Undesirable Discharge Certificate.

10.  On 6 May 1965, the applicant was discharged accordingly.  He completed
a total of 4 years, 5 months, and 16 days of creditable active military service with 86 days of time lost.


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

12.  Army Regulation 635-208, in effect at the time, 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 frequent incidents of a discreditable nature with civil or military authorities. 

13.  Army Regulation 635-200 governs the policies and procedures 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.

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 an honorable discharge was carefully considered and determined to be without merit.

2.  The applicant's record shows he received an Article 15 and was convicted by a special and a summary court-martial.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights. 

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the discharge accurately reflects his overall character of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110003298



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ABCMR Record of Proceedings (cont)                                         AR20110003298



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