BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120007543 


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 that his undesirable discharge be upgraded to honorable or to general under honorable conditions.

2.  The applicant states, in effect, he does not dispute the circumstances under which he was discharged 48 years ago.  He has married, raised children, and been productive since that time.  For the sake of his children, he would like his discharge upgraded.  His misbehavior took place when he was under the influence of alcohol.  At the time, the military did not regard alcoholism as a disease.  He has not had any type of alcohol or drugs since August 1979.  Even back then he would have died for his country and still would.  This is the greatest country on earth.  Back then, he did not know any better.  This has been a big embarrassment for him and his wife.  His children do not know about his discharge.

3.  The applicant provides a copy of 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.  On 3 November 1961, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 620.00 (Engineer Equipment Maintenance Helper).

3.  On 16 July 1962, the applicant was advanced to private first class, pay grade E-3.

4.  On 30 July 1963, the applicant was convicted in civilian court for larceny of a motor vehicle.

5.  The applicant accepted the following nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice on:

* 29 March 1963 for speeding and erratic driving of a government vehicle
* 3 June 1963 for neglect causing damage to a government vehicle
* 12 August 1963 for being absent without leave (AWOL) from 11 to 
24 June and from 1 July to 1 August 1963
* 7 October 1963 for being AWOL from 15 to 18 September 1963
* 7 October 1963 for leaving the installation without possessing the proper pass
* 22 May 1964 for being drunk and disorderly on the installation and failure to sign out prior to leaving the installation
* 9 June 1964 for breaking restriction
* 17 July 1964 for willfully disobeying a lawful order from a noncommissioned officer
* 24 July 1964 for failure to obey a lawful order to get a haircut and for being improperly shaven at formation
* 14 August 1964 for failure to go to his place of duty at the time prescribed
* 19 September 1964 for being drunk and disorderly in the billets on 
15 September and for being drunk and disorderly off post on 
18 September 1964

6.  On 11 September 1964, a psychiatrist reported that the applicant was diagnosed with emotional instability reaction, chronic, severe, as manifested by 


anxiety, immature behavior, poor reasoning, and his inability to follow orders or accept authority.  The applicant had no physical or mental disability sufficient to warrant separation for medical reasons.  His immaturity reaction due to deficiencies in emotional and personality development was of such a degree that it rendered him unsuitable for further military service.

7.  On 16 September 1964, the applicant’s commander recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-208 due to unfitness based on his conviction by civilian court and numerous NJPs.  The commander recommended the issuance of an Undesirable Discharge Certificate.

8.  On 6 October 1964, the appropriate authority approved the recommendation for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).

9.  Accordingly, he was discharged under other than honorable conditions on 
12 October 1964 under the provisions of Army Regulation 635-208 for involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had completed 2 years, 9 months, and 28 days of creditable active service and had 41 days of lost time.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge.

11.  Army Regulation 635-208 (Personnel Separations), then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 3a of the regulation provided, in pertinent part, for the separation of personnel for involvement in frequent incidents of a discreditable nature with civil or military authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

12.  Army Regulation 635-200 sets forth the basic authority 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 contends that his undesirable discharge should be upgraded to honorable or to general under honorable conditions because he has been a productive citizen since his discharge.

2.  The available record shows the applicant was convicted by a civilian court of larceny and he had accepted eleven NJPs.  Clearly, this misconduct warranted discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant’s claim of good post-service conduct and citizenship does not sufficiently mitigate his repeated and excessive acts of indiscipline during his military service.

6.  In view of the above, the applicant's 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)                                         AR20120007543



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ABCMR Record of Proceedings (cont)                                         AR20120007543



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