IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110019820 


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.

2.  The applicant states, in effect, that he has always believed that a general under honorable conditions discharge was considered an honorable discharge.  His company commander told him that his discharge would help him and his family without any more problems from the Army or authority figures.  Further, he has used his veteran's benefits for 20 years but now there is question about his eligibility to receive medical benefits.

3.  The applicant provides his DD Form 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 11 December 1961.  He completed initial entry training and he was awarded the military occupational specialty of an automobile maintenance helper.

3.  His record contains a DA Form 26 (Record of Court-Martial Conviction).  This document shows he was convicted on three separate occasions by summary court-martial of:

* being disorderly in uniform in a public place and possession of a concealed weapon (mess-kit type knife) sharpened on both sides on
13 December 1962
* breaking restriction and failing to go to his appointed place of duty on
30 December 1963
* failing to go at the prescribed time to his appointed place of duty (on or about 18 and 19 February 1964) on 24 February 1964

4.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a memorandum from the Assistant Adjutant General, U.S. Army Training Center, Infantry, Fort Ord, dated 17 March 1964.  This memorandum stated the applicant would be eliminated from service under the provisions of Army Regulation 635-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge) with a Separation (SPN) Code of 28B - Unfitness, and issued an undesirable discharge certificate. 

5.  His DD Form 214 shows he was discharged on 24 March 1964 in accordance with Army Regulation 635-208, SPN 28B, for unfitness, in pay grade E-1 with an under other than honorable conditions character of service.  This form also shows he:

* was issued a DD Form 258A (Undesirable Discharge Certificate)
* completed 2 years, 3 months, and 10 days of creditable active service
* had 3 days of time lost due to being absent without leave (AWOL)

6.  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.

7.  Army Regulation 635-200 (Personnel Separations), 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.

8.  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 requests upgrade of his undesirable discharge.

2.  He contends he has always believed that his discharge was under honorable conditions.  However, his DD Form 214 clearly shows the characterization of his discharge as "under other than honorable conditions" and that he was issued an Undesirable Discharge Certificate.  His record shows three summary courts-martial for being disorderly, possessing a concealed weapon, and breaking restriction.  Based on this record of indiscipline his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

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

4.  In view of above, his request should be denied.








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)                                         AR20110019820





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ABCMR Record of Proceedings (cont)                                         AR20110019820



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