IN THE CASE OF:	  

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20120003261 


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 undesirable discharge be upgrade to an honorable discharge.

2.  The applicant states:

* he was accused of stealing a Jeep, but he had a 24-hour trip ticket for the Jeep
* the charge of quarters (CQ) wanted the Jeep, but he refused to give it to him since he was responsible for it
* he was arrested upon his return with the Jeep and later court-martialed
* he desires peace of mind at this time 

3.  The applicant provides a National Archives (NA) Form 13165 (Reply Regarding Social Security Inquiry).  

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 Michigan Army National Guard on 3 April 1960.  He entered active duty for training on 30 April 1960 and was released from active duty training on 29 October 1960.  He was discharged from the Army National Guard 13 September 1961.

3.  On 14 September 1961, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 171 (Air Defense Missile Crewman) and later 293 (Radio Relay and Carrier Operator). The highest rank/grade he attained while on active duty was specialist four/E-4.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses:

* on 2 May 1963, for sleeping on duty during a field maneuver
* on 3 June 1963, for failure to go at the prescribed time
* on 29 June 1963, for being absent without leave (AWOL) and failure to repair
* on 22 July 1963, disorderly conduct and disobeying an order
* on 12 October 1963, for being AWOL
* on 24 February 1964, for disorderly conduct

5.  On 1 July 1963, the applicant acknowledged a certificate indicating he understood:

* he was substandard 
* his conduct both on and off duty made him undesirable for retention beyond his present term of service and a bar from reenlisting was being initiated
* he was advised of possible separation if his actions continued

6.  On 11 July 1963, the approval authority approved the applicant's reenlistment bar.

7.  On 12 October 1963, the applicant was interviewed by his commander on the requirements and policies of the unit.  He was also briefed on being separated from the service with an Undesirable Discharge Certificate and his ineligibility for State and federal benefits as a result.

8.  On 29 January 1964, the applicant's commander wrote the applicant's parents in an attempt to influence his behavior.

9.  A DA Form 26 (Record of Court-Martial Conviction) shows the applicant was tried and found guilty by 2 summary courts-martial on 26 December 1963 and
7 April 1964 for being AWOL, disorderly in public, and wrongfully appropriating a government vehicle.

10.  An AE Form 3087 (Report of Psychiatric Evaluation), dated 14 April 1964, shows the applicant was a well-motivated Soldier who performed excellently on the job but got into a series of episodes of misconduct after excessively harsh (and perhaps totally unfair) punishment a year prior.  His recent offense appears to have been misjudgment rather than deliberate behavior.  The recommendation was retention on duty for another chance.

11.  A DA Form 19-24 (Statement), dated 15 April 1964 and provided by the applicant's platoon sergeant, shows that on 1 April 1964, he did not authorize the applicant's use of a government vehicle and the applicant misappropriated the vehicle.

12.  A memorandum, entitled, "Summary of Disciplinary Problems," dated 20 April 1964, shows:

* the applicant was tried and found guilty by a summary court- martial of violation of the UCMJ under Articles 86 (AWOL) and 134 (disorderly conduct) on 26 December 1963
* subsequent to his court-martial, he was transferred to another platoon for rehabilitation

13.  On 21 April 1964, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 
635-208 (Unfitness, Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) and that he be separated with an undesirable discharge.

14.  On 21 April 1964, having been advised by consulting counsel of the basis for the contemplated separation action, the applicant acknowledged receipt of the notification and requested consideration by an administrative separation board and a personal appearance before an administrative separation board.

15.  On 28 April 1964, a Board of Officers was appointed.  A Board of Officers convened on 11 May 1964.  The board's findings are as follows:

* the applicant's behavior rendered him repeatedly vulnerable to punitive action
* formal and informal counseling had no material, lasting effect on his conduct off duty, nor on his behavior toward other members of his unit, nor on his personal appearance
* “his established pattern of misconduct did not begin to compensate for his admitted proficiency in his MOS”
* good and sufficient evidence existed for unfitness within the terms of Army Regulation 635-208 

16.  The Board of Officers recommended the applicant's separation with an Undesirable Discharge Certificate.

17.  On 24 May 1964, the separation authority approved the board's recommendation and directed the applicant's separation with an Undesirable Discharge Certificate.

18.  On 22 June 1964, the applicant was discharged with an under other than honorable conditions discharge.  He completed a total of 3 years, 2 months, and 17 days of credible active military service.  He had 23 days of lost time for the period 8 through 30 April 1964.

19.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

20.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

21.  Army Regulation 635-200, paragraph 3-7b, states 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 request for an upgrade of his under other than honorable conditions (undesirable) discharge to an honorable discharge was carefully considered and determined to lack merit.

2.  The applicant's misconduct had a detrimental impact on his units and clearly diminished the overall quality of his service below that meeting an honorable or a general discharge.

3.  The applicant’s military records show he committed numerous offenses that led to his discharge.  His record includes evidence that he received multiple instances of NJP and two court-martial convictions.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a change to his characterization of service.

4.  The type of discharge directed and the reason for separation were appropriate considering the available facts of the case.  The record contains no evidence that the applicant was coerced or any indication of procedural or other errors that would have jeopardized his rights.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. 

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)                                         AR20120003261



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ABCMR Record of Proceedings (cont)                                         AR20120003261



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