BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120010358 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he had witnesses to substantiate his story, but no one seriously responded to what he said.  He further states he did not know what to do to request a change of his discharge.

3.  The applicant provides:

* a two-page letter from the Department of Veterans Affairs (VA)
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  A representative of the American Legion forwarded the applicant's request on his behalf. 

2.  Counsel requests to be informed of all actions taken in this case. 

3.  Counsel provides no additional evidence.




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 inducted into the Army of the United States on 31 July 1961.  His records show he completed training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  On 10 May      1962, he was honorably discharged for immediate reenlistment.   The highest rank/grade he attained while serving on active duty was private/E-2.  However, at the time of his discharge he held the rank/grade of private (PVT)/E-1.

3.  His record contains a DA Form 26 (Record of Court-Martial Conviction), which shows he was found guilty at a summary court-martial of disobeying a lawful order on 20 and 29 January 1963, in violation of the Uniform Code of Military Justice (UCMJ).  This document also shows he was sentenced to be confined at hard labor for 30 days and to forfeit $28.00.  The sentence was adjudged on       5 and approved on 7 February 1963.

4.  This form also shows he was found guilty on a summary court-martial of being derelict in his duties on 24 March 1963 and for failing to memorize his general guard orders.  He was sentenced to forfeit $20.00.  The sentence was adjudged on 4 and approved on 9 April 1963.

5.  His record contains Special Court-Martial Order Number 40 issued by Headquarters, 1st Battle Group, 15th Infantry, dated 21 May 1963, which shows the applicant was found guilty of misappropriating a bicycle on 3 April 1963, of a value of $60.00, in violation of the UCMJ.  These orders also show he was sentenced to be confined at hard labor for 6 months, to forfeit $28.00 per month for 6 months, and to be reduced to the rank/grade of PVT/E-1.  The sentence was adjudged on 10 and approved on 21 May 1963.

6.  On 23 May 1963, the applicant's immediate commander notified him that he was being recommended to appear before a board of officers to determine whether he should be eliminated from the service under the provisions of Army Regulation 635-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge).  

7.  On 3 June 1963, the applicant acknowledged receipt, was afforded the opportunity of requesting counsel, and further requested witnesses to appear on his behalf. 

8.  On 18 June 1963, the applicant appeared before the board with his military counsel and witness testimony on the applicant's behalf.  After carefully considering the evidence of record, the board found the applicant:

   a.  Lacked the minimum motivation necessary to be a barely passable Soldier.

   b.  Had several chances to “soldier through” but has refused to help himself.

   c.  Demonstrated that he was undependable, untrustworthy, and unstable as evidenced by his two summary and one special courts-martial as well as his five Article 15s.

   d.  Constantly failed to conform to the minimum standards and policies acceptable to the service.

9.  The board was adjourned at 1645 hours, on 18 June 1963, with a recommendation that the applicant be discharged from service and receive an undesirable discharge under the provisions of Army Regulation 635-208.

10.  On 26 June 1963, the convening authority approved the findings of the board and recommended the applicant be discharged from the service due to unfitness and that he receive an undesirable discharge certificate.

11.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 15 July 1963, in accordance with Army Regulation 635-208, for unfitness, in pay grade E-1 with an under other than honorable conditions character of service.

12.  Item 11c (Reason and Authority) of the applicant's DD Form 214 contains the entry SPN (Separation Program Number) 28B.  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that the SPN code        28B was authorized for separations under the provisions of Army Regulation 635-208 with the following associated narrative reason:  "Unfitness - Frequent involvement in incidents of a discreditable nature with civil or military authorities."
13.  On 24 August 1967, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

15.  Army Regulation 635-200 (Personnel Separations - 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.  

16.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and found to be without merit.  

2.  The applicant's records reveal a disciplinary history which includes multiple instances of courts-martial convictions.  Accordingly, his immediate commander initiated separation action against him.  His discharge was processed in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of 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.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120010358



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ABCMR Record of Proceedings (cont)                                         AR20120010358



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