BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110011368 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was only 17 years of age at the time of his enlistment under the buddy plan and his buddy and he were separated during basic training and then went to different places for advanced individual training.  He goes on to state that he felt that the Army did not keep its promises and he wanted out of the Army.  He goes on to state that after leaving the Army he became a productive citizen and raised a family.

3.  The applicant provides two pages explaining his application and a copy of his college diploma.

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 25 March 1942 and enlisted in the Regular Army with parental consent on 10 April 1959 for a period of 3 years and training as a mechanics helper.  There is no indication of enlistment under the Buddy Plan indicated in his contract.

3.  He was transferred to Fort Leonard Wood, Missouri to undergo his training and he went absent without leave (AWOL) from 11 May to 12 May 1959.  The record is silent as to any punishment imposed.

4.  He completed his training and was transferred to Korea on 22 September 1959 for assignment to an artillery battery of the 7th Infantry Division.

5.  On 7 July 1960, while serving in the rank of private first class (PFC), he was honorably discharged for the purpose of immediate reenlistment. He had served 1 year, 2 months, and 28 days of active service.

6.  On 8 July 1960, he reenlisted for a period of 6 years.  He departed Korea on 4 October 1960 for assignment to Germany.  He arrived in Germany on 25 November 1960 and was assigned to an armored cavalry troop in Bad Hersfeld.

7.  On 21 January 1961, nonjudicial punishment (NJP) was imposed against him for failure to repair and disorderly conduct.

8.  On 9 March 1961, he was convicted by a summary court-martial of being absent from his place of duty on 25 February 1961.

9.  On 13 November 1961, NJP was imposed against him for being disrespectful towards a noncommissioned officer (NCO).

10.  On 16 March 1962, NJP was imposed against him for refusing to complete a physical fitness test.

11.  On 28 March 1962, he was convicted by a summary court-martial of being AWOL from 3 March to 6 March 1962.

12.  On 9 April 1962, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-208 for unfitness based on his frequent involvement in incidents of a discreditable nature with military authorities.  He cited the applicant’s frequent acts of misconduct as the basis for his recommendation.

13.  On 19 April 1962, the applicant waived all of his rights and declined to submit a statement in his own behalf.

14.  On 11 May 1962, the appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

15.  Accordingly, he was transferred to Fort Hamilton, New York where he was discharged under other than honorable conditions on 4 June 1962.  He had served 1 year, 10 months, and 22 days of active service during the period under review and had 5 days of lost time.

16.  Army Regulation 635-208, in effect at the time, set forth the authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 sets forth the basic authority 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.

18.  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 administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

2.  The applicant's contentions have been noted.  However, the misconduct for which he was discharged occurred well after he completed basic training and after he reenlisted.  Given the repeated nature of his misconduct and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of a general discharge.

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)                                         AR20110011368





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ABCMR Record of Proceedings (cont)                                         AR20110011368



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