IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100026722


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 his discharge be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states, in effect, he was administratively discharged for unfitness with an undesirable discharge (UD).  He does not remember all of the particulars surrounding the reason for his discharge, but he is repentant for his actions.  He can only state that he learned a valuable lesson from his military service and has lived his life honorably since his discharge.  He started and has maintained a relationship with God and has preached the Gospel for more than 42 years.  He married and is a good husband and father and he has been a good neighbor in his community.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* nine letters of recommendation from –

* his son
* his pastor
* a young man he mentored
* a husband-wife neighbor of 40 years
* a male acquaintance of more than 40 years
* a physician and fellow church member
* his youngest daughter
* his oldest daughter
* an acquaintance of 6 years

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 4 October 1945.  He enlisted in the Regular Army for 3 years on 7 February 1963 at 17 years of age and after dropping out of the 10th grade.

3.  The applicant demonstrated "excellent" conduct and efficiency during his initial entry training as follows:

* basic combat training, Fort Gordon, GA, 14 February-4 June 1963
* advanced individual training, Fort Sam Houston, TX, 5 June-3 August 1963

4.  The applicant was awarded military occupational specialty 910.00 (Medical Corpsman) and was assigned to Germany for his first permanent duty assignment.  He arrived in Germany on 17 August 1963 and was assigned to Company B, 46th Medical Battalion, 4th Armored Division.  It appears he served under two commanding officers.

5.  On 10 October 1963, the applicant was promoted to the rank of private first class (PFC)/E-3.  Although his conduct and efficiency were never rated while in Germany, it appears he performed in a satisfactory manner until early 1964 when he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty, to wit:  guard mount, on 23 February 1964 in Heilbronn, Germany.  His punishment was a forfeiture of $23.00 pay per month for 1 month and 14 days of restriction to his billets.

6.  The applicant received NJP a second time on 13 April 1964 for absenting himself from his unit from 0001-0800 hours, 1 April 1964.  His punishment was a reduction from PFC to private (PV2)/E-2 (suspended until 13 October 1964), 14 days of restriction to post, and 14 days of extra duty.

7.  On 1 June 1964, the applicant was convicted by a special court-martial for willfully disobeying the lawful order of a commissioned officer to remain in his room except to go to the latrine or to the mess hall for meals on or about 2 May 1964.  He was sentenced to confinement at hard labor for 3 months and forfeiture of $50.00 pay per month for 3 months.

8.  On 2 October 1964, the applicant received NJP a third time for going from his place of duty without authority at 0001 hours, 1 October 1964.  His punishment was 14 days of restriction to post, 14 days of extra duty, and forfeiture of $20.00 pay per month for 1 month.

9.  On 6 October 1964, the applicant's company commander initiated administrative separation action against him for unfitness under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  In a written statement, he described the applicant's duty performance as "satisfactory" and his efficiency as "unsatisfactory."  He described the applicant as a Soldier who committed numerous petty offenses – like missing bed check – and was not amenable to corrective action.  He added that he had been his commanding officer for about 6 months.

10.  On 14 October 1964, the approving authority approved the applicant's separation for unfitness with a UD.  On 23 October 1964, he departed Germany en route to the United States.  He arrived at Fort Hamilton, NY, on 1 November 1964 and was given a UD on 2 November 1964.  He completed 1 year and 8 months of creditable active Federal service of which 1 year, 2 months, and 2 days was in Germany.

11.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

12.  The applicant provides nine letters of recommendation from his children, pastor, friends, and neighbors.  All of these letters state the applicant is an honorable man and upstanding member of his community.  He raised his children to be good citizens, he gave to his community and church, and he helped those less fortunate than himself.

13.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  A UD was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides guidance on characterization of service.  Paragraph 3-7b states that a GD 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 requests his discharge be upgraded to a GD.

2.  The applicant was a 17-year old boy with a 9th grade education when he enlisted for 3 years.  He did well throughout his initial entry training and for his initial service of 6 months in Germany.  He was promoted to PFC on 10 October 1963.

3.  In February 1964, the applicant received the first of three NJP's.  The NJP's were all administered by the same officer, the one who initiated administrative separation action against him and stated he had been his commander for "about 6 months."  The reason for his sudden decline in deportment is unknown.  But whatever the problem, the applicant quickly amassed three NJP's and a special court-martial conviction.  It is noted, however, his incidents of indiscipline were for purely military offenses and were relatively minor in nature – failing to go to duty, leaving his place of duty, unauthorized absence for several hours, missing bed check, disobeying a restriction order.

4.  The applicant has been characterized as a good husband, father, neighbor, and citizen in the letters of recommendation which he provided with his application.  Over the past 46 years, he has demonstrated good post-service conduct.

5.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant's records as indicated below.

BOARD VOTE:

____X____  ________  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  _____X___  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his characterization of service to that of general under honorable conditions.  This does not affect the reason and authority for discharge.



      ____________XXX_____________
                 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)                                         AR20100026722



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ABCMR Record of Proceedings (cont)                                         AR20100026722



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