IN THE CASE OF:	

	BOARD DATE:   21 August 2008	  

	DOCKET NUMBER:  AR20080006942 


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, in effect, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that during his service in the U.S. Army he made dumb decisions of a very young man by not being in bed at midnight and trusting someone that the bottle in his locker was just a miracle cure for hangovers.

     a.  The applicant states he joined the Army 2 weeks after his 17th birthday and he was way too immature and unprepared to be away from home at that time.  He also states that he was sent to Worms, Germany, in April 1961, and served during the Berlin Crisis and Cuban Missile Crisis.

     b.  The applicant states that he was charged with being absent without leave (AWOL) because he was not in his bunk at midnight bed check.  He also states that another time he was out drinking with the older guys and one of them gave him a little bottle, and told him he should drink it if he had a hangover.  He further states that he had it in plain view in his locker and when it was found in his wall locker, he was told it was liquor.  The applicant states that if he had known it was liquor, he would not have had it.

     c.  The applicant states that he was then sent to the stockade.  He also states that Lieutenant Antonio M_____ presented him with a paper to sign to accept an undesirable discharge and go home, and he willingly signed it.

     d.  The applicant adds he has been trying to live this down for his entire life.  He has been married for 36 years, worked hard to put his wife and 2 daughters through college, and has also helped start his son in business as an independent contractor.  The applicant concludes by requesting his undesirable discharge be changed.

3.  The applicant provides a self-authored statement, dated 23 February 2008, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 14 June 1963.

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 military service records contain a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 8 October 1960.  This document shows, in pertinent part, the applicant’s date of birth is 27 September 1943 and that the applicant’s father (James M_____) and mother (Jeanne D. M_____) consented to the applicant’s enlistment in the Regular Army for a period of
3 years.

3.  The applicant’s military service records show that he enlisted in the U.S. Army for a period of 3 years and entered active duty on 18 October 1960.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 640.00 (Light Vehicle Driver).  On
1 April 1961, he was assigned overseas to the 34th Transportation Company, 38th Transportation Battalion (Truck) (Germany) for duty in MOS 640 (Light Vehicle Driver).

4.  The applicant's military service records contain a DA Form 26 (Record of Court-Martial Conviction) that documents the following Summary Court-Martial convictions.

     a.  Headquarters, 38th Transportation Battalion (Truck) (Germany), Summary Court-Martial Order Number 28 (1961), shows that, on or about 7 August 1961, the applicant was disrespectful in language and deportment toward acting Sergeant Harold B. W____, his superior noncommissioned officer (NCO), in violation of Article 134 of the Uniform Code of Military Justice (UCMJ).  This order also promulgated the applicant’s sentence of forfeiture of $50.00 per month for 1 month and restriction to the company area for 30 days, which was adjudged and approved on 17 August 1961.

     b.  Headquarters, 38th Transportation Battalion (Truck) (Germany), Summary Court-Martial Order Number 33 (1961), shows that, on or about 27 August 1961, having been duly restricted to the limits of Taukkunen Barracks, the applicant did, at Worms, Germany, break said restriction, in violation of Article 134, UCMJ. This order also promulgated the applicant’s sentence to perform hard labor without confinement for 30 days and forfeiture of $50.00 per month for 1 month, which was adjudged on 11 September 1961 and approved on 12 September 1961.

     c.  Headquarters, 38th Transportation Battalion (Germany), Summary Court-Martial Order Number 82 (1962), shows that, on or about 10 November 1962, the applicant did, at Worms, Germany, without proper authority, fail to go at the time prescribed to his appointed place of duty, in violation of Article 86, UCMJ. This order also promulgated the applicant’s sentence to perform hard labor for
30 days without confinement and reduction to the lowest enlisted pay grade, which was adjudged and approved on 27 November 1962.

     d.  Headquarters, 38th Transportation Battalion (Germany), Summary Court-Martial Order Number 87 (1962), shows that, on or about 3 December 1962, at Worms, Germany, the applicant was disrespectful in language towards his superior NCO who was then in the execution of his office and the applicant did willfully disobey a lawful order from his superior NCO, in violation of Article 91, UCMJ.  This order also promulgated the applicant’s sentence to confinement at hard labor for 30 days and forfeiture of $50.00 per month for 1 month, which was adjudged on 3 December 1962 and approved on 4 December 1962.

     e.  Headquarters, 38th Transportation Battalion (Germany), Summary Court-Martial Order Number 1 (1963), shows that, on or about 1 January 1963, the applicant did, at Worms, Germany, without proper authority, fail to go at the time prescribed to his appointed place of duty, in violation of Article 86, UCMJ.  This order also promulgated the applicant’s sentence to confinement at hard labor for 30 days; forfeiture of $40.00 per month for 1 month; and reduction to the lowest enlisted pay grade, which was adjudged and approved on 22 January 1963.
     
     f.  Headquarters, 38th Transportation Battalion (Germany), Summary Court-Martial Order Number 8 (1963), shows that, on or about 2 April 1963, the applicant did, at Worms, Germany, without proper authority, fail to go at the time prescribed to his appointed place of duty, in violation of Article 86, UCMJ.  This order also promulgated the applicant’s sentence to confinement at hard labor for 30 days, which was adjudged and approved on 4 April 1963.

5.  The applicant's military service records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 21 May 1963.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 20 May 1963, at Worms, Germany, without authority, absenting himself from his unit, to wit:  34th Transportation Company, located at Taukkunen Barracks (Germany) and remaining absent until on or about 2250 hours, 20 May 1963.  This document also shows it was reported that, on or about 21 May 1963, the applicant again went AWOL and was apprehended in an “Off Limits” area known as “Little Moscow,” Worms, Germany, and it was further reported that the applicant was drunk and disorderly in that he was cursing at the Unit Police, ripped a Unit Policeman’s uniform, and broke away and ran from the Unit Police and Charge of Quarters, 34th Transportation Company.  The punishment imposed was forfeiture of $26.00; restriction to the unit’s billets and company area, mess hall, and chapel for 14 days; and extra duty for 8 days.

6.  On 21 February 1963, the applicant’s company commander recommended the applicant’s separation from that military service under the provisions of Army Regulation 635-208.  The reasons for the separation action cited by the company commander were the applicant’s 5 court-martials, 3 Article 15s, his disrespect to superiors, finding a small bottle of alcohol in his wall locker, and his missing bed check.  The commander also cited as reasons for the separation action the applicant’s inefficiency and lackadaisical attitude, his failure to repair, disobeying an NCO, and going AWOL; after being transferred in an effort for rehabilitation.  This document also shows that the company commander concluded the applicant would not react to punishment or attempts at rehabilitation.  The command recommended the applicant be discharged under the provisions of Army Regulation 635-208 and furnished an Undesirable Discharge Certificate.

7.  The applicant’s separation action contains an AE Form 3087 (Report of Psychiatric Evaluation), dated 1 February 1963.  This document shows that the examining psychiatrist evaluated the applicant and determined he was oriented, rational, coherent, and gave no evidence of abnormal thinking or behavior suggesting psychosis.  This document also shows that he found the applicant had the mental capacity to understand and participate in board proceedings and 
was considered mentally responsible for his acts.  The examining psychiatrist concluded the applicant represented a poor risk for effective service in the military and was cleared psychiatrically for any administrative disposition deemed appropriate by his commander.

8.  On 18 April 1963, the applicant acknowledged with his signature that he had been counseled and advised by his commanding officer of the basis for the action recommended, namely administrative elimination from the Army under the provisions of Army Regulation 635-208.  He also acknowledged that he was furnished a copy of the commanding officer’s report and copies of statements submitted to support his recommendation for administrative elimination from the Army.  This document also shows that the applicant declined the opportunity of requesting counsel, waived his rights to have his case heard by a board of officers, did not desire to submit a statement in his own behalf, and understood the type of discharge that the separation authority may issue could be under other than honorable conditions.  This document further shows that Second Lieutenant James H. B_____, Jr., Motor Officer, placed his signature on the document attesting that he explained each statement to the applicant to ensure that the applicant understood the meaning and intent of each statement and that he personally witnessed the signing and completion of the statement by the applicant.

9.  On 18 April 1963, the lieutenant colonel serving as Commander,
38th Transportation Battalion (Germany), recommended approval of the applicant’s discharge under the provisions of Army Regulation 635-208 and that the applicant be given an undesirable discharge.

10.  On 19 April 1963, the colonel serving as Commander, 10th Transportation Group (Germany), recommended approval of the applicant’s discharge under the provisions of Army Regulation 635-208 and that the applicant be given an undesirable discharge.

11.  On 29 April 1963, the major general serving as Commander, Seventh Army Support Command and the designated separation authority, approved the separation action under the provisions of Army Regulation 635-208, paragraph 10b(3), for unfitness, and directed that the applicant receive an undesirable discharge.

12.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged from the U.S. Army with an undesirable discharge with service characterized as under other than honorable conditions, in accordance with the provisions of Army Regulation 635-208, 

Separation Program Number (SPN) 28B.  Item 30 (Remarks) of the DD Form 214 shows, in pertinent part, the applicant had 70 days lost under Title 10, USC, section 972, from 4 December 1962 through 27 December 1962, 22 January 1963 through 13 February 1963, and 4 April 1963 through 25 April 1963.  The DD Form 214 also shows that the applicant was discharged on 14 June 1963, credited with completing 2 years, 5 months, and 18 days net active service during the period under review, and issued a DD Form 258A (Undesirable Discharge Certificate).

13.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

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

15.  In support of his application, the applicant provides a self-authored statement, dated 23 February 2008, and his DD Form 214, with an effective date of 14 June 1963.  These documents were previously introduced and considered in this Record of Proceedings.

16.  Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character), 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.  Paragraph 6 (Applicability) of this document states that an individual is subject to separation under the provisions of this regulation when one or more of the conditions exist and subparagraph 1 (Unfitness) includes, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a discharge for unfitness was normally furnished an Undesirable Discharge Certificate.

17.  Army Regulation 635-5-1 (Separation Program Numbers), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “28B” as the appropriate code to assign enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

19.  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.  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, in effect, that the character of service of his discharge should be upgraded because he was young and made poor decisions with respect to not being in bed at midnight and trusting someone that the bottle in his locker was just a miracle cure for hangovers.

2.  The evidence of record shows that the applicant was 17 years of age when he entered active duty in the Army, he committed acts of indiscipline over the course of nearly 2 1/2 years during his military service, and he was 19 years of age at the time he was discharged on 14 June 1963.  However, there is no evidence, and the applicant provides insufficient evidence, that indicates he was any less mature than other Soldiers of the same age who successfully completed military service during this period.

3.  The evidence of record shows the applicant was credited with completing
2 years, 5 months, and 18 days net active service during the period of service under review.  The evidence of record also shows that during this period the applicant was convicted by Summary Court-Martial on 6 occasions and punished under the provisions of Article 15 (UCMJ) on 3 occasions.  Thus, the evidence of record refutes the applicant’s claim that his poor decisions were limited to his not being in bed at midnight and trusting someone that the bottle in his locker was just a miracle cure for hangovers.

4.  The evidence of record shows the applicant was discharged based upon frequent incidents of a discreditable nature with military authorities.  The evidence of record also shows that the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time, all requirements of law and regulation were met, and the applicant’s rights were 
protected throughout the separation process.  Thus, the evidence of record confirms the reason and authority for the applicant’s discharge were appropriate for the offenses committed.  In this regard, and in view of the foregoing, the evidence of record shows the applicant’s record of service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the evidence of record shows the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  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)                                         AR20080006942



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ABCMR Record of Proceedings (cont)                                         AR20080006942



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