IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120000663 


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.

2.  The applicant states:

* he was 18 years old at the time of his discharge
* he was incompetent, not educated, and too immature at the time
* he was raised in a children's home almost all his young life prior to enlisting in the Army
* he did not apply for an upgrade of his discharge earlier because he was young and did not care what happened to him

3.  The applicant provides self-authored statements.

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 15 January 1942.  At the age of 17 years, on
28 July 1959, he enlisted in the Regular Army with parental consent for a term of
3 years.  Documents associated with his enlistment show the applicant had an unstable home life and:

* had a violent argument with his father wherein he threatened to kill him and destroyed household furnishings
* was charged with petty larceny and incorrigibility
* was committed to the Illinois Youth Commission Facility at St. Charles, IL on 31 July 1957 as a juvenile delinquent
* was released from juvenile detention on 9 March 1959

3.  The applicant was sent to Fort Leonard Wood, MO for training.  He completed training and he was awarded military occupational specialty 640 (light vehicle driver).  The highest rank/grade he attained while on active duty was private (PV2)/E-2.

4.  Records show the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for:

* causing an accident by following too closely on 20 September 1960
* failing to obey a lawful order to take a proficiency test on 13 December 1960

5.  The applicant was also convicted by courts-martial as follows:

	a.  Special Court-Martial Order Number 108, issued by Headquarters,
2d Training Regiment, Basic, U.S. Army Training Center, Engineer, Fort Leonard Wood, dated 17 September 1959, shows the applicant was found guilty of assaulting a fellow recruit on or about 29 August 1959 by raising a shovel above his head and attempting to strike him.  He was sentenced to confinement at hard labor for 3 months and forfeiture of $52.00 per month for 3 months.  Sentence was adjudged on 17 September 1959.  The convening authority approved the sentence and ordered it executed, but the execution of the sentence to confinement at hard labor for 3 months was suspended for 3 months, at which time, unless sooner vacated.


	b.  Summary Court-Martial Order Number 5, issued by Headquarters, 181st Transportation Battalion (Truck), Mannheim, Germany, dated 16 February 1961, shows the applicant was found guilty of striking a noncommissioned officer (NCO) with his fists and being disrespectful in language toward the same NCO on 14 February 1961.  He was sentenced to reduction to private (PV1)/E-1, confinement at hard labor for 30 days, and forfeiture of $50.00.  

6.  The applicant's record contains a statement signed by the applicant, dated
28 February 1961, wherein he states, in effect, he was advised of the action being taken against him and the basis for separation under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness).  He states he was offered counsel, but waived counsel.  He further waived the hearing of his case by a board of officers.  He also elected not to make a statement in his own behalf.

7.  On 7 March 1961, the applicant's first sergeant and former first sergeant provided statements indicating they both had counseled him on multiple occasions and recommended his elimination from active duty.  Both first sergeants indicated he had a disregard for military authority.

8.  On 11 March 1961, the applicant's commander initiated separation actions against him under the provisions of Army Regulation 635-208 and recommended the applicant receive an undesirable discharge.

9.  On 15 March 1961, the applicant underwent a psychiatric evaluation.  His AE Form 3087 (Certificate of Psychiatric Examination) showed he had no psychiatric disease and had the mental capacity to understand and participate in board proceedings.  

10.  On 29 March 1961, the separation authority, a brigadier general, approved the applicant's discharge under the provisions of Army Regulation 635-208, paragraph 10b(3) for unfitness.  He directed the applicant's reduction to private (PV1)/E-1 and issuance of an Undesirable Discharge Certificate.

11.  On 2 May 1961, the applicant was discharged accordingly.  He completed 1 year, 8 months, and 24 days of total active service.

12.  On 26 July 1961, the applicant was notified that the Army Discharge Review Board, after careful consideration of his military records and all other available 
evidence, determined he was properly discharged.  Therefore, his request for a change in the type and nature of his discharge was denied.

13.  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.

14.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.

	a.  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.

	b.  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 request for an upgrade of his undesirable discharge was carefully considered.

2.  Records show the applicant was 17 years of age at the time of his indiscipline.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  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.  Evidence clearly shows he was not responsive to the rehabilitative efforts of his command.  The applicant's misconduct clearly diminished the overall quality of his service below that meeting a general discharge.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service with no evidence that shows his discharge was in error or unjust.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or 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)                                         AR20120000663



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ABCMR Record of Proceedings (cont)                                         AR20120000663



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