IN THE CASE OF:	

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20130002556 


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, that his undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was not granted adequate counsel.  He enlisted in the military in Knoxville, TN in 1961 with a very low intelligence quotient (IQ) score, which at the time meant nothing.  He served in the military for 2 years, 10 months, and 28 days.  He served in Germany where he drove an armored personnel carrier.  He was put in a room and was not given an opportunity to explain.  He was not told what the outcome would be.  He just had to sit there and look dumb.

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 24 April 1961, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 111.10 (Light Weapons Infantryman).

3.  On 29 October 1963, the applicant was convicted by a special court-martial of violating Article 86 by being absent without leave (AWOL) from 21 August to 
4 October 1963 and from 5 to 8 October 1963.

4.  The applicant accepted nonjudicial punishment (NJP) for being AWOL from 18 to 20 April 1964.

5.  On 27 October 1964, the applicant was convicted by a special court-martial of violating Article 86 by being AWOL from 1 to 9 August 1964 and from 
2 September to 6 October 1964.

6.  The discharge packet is missing from the available records.  However, his 
DD Form 214 shows that he was administratively discharged on 27 November 1964 under the provisions of Army Regulation 635-208, with a separation program number of 28B for unfitness.  His service was characterized as under conditions other than honorable, and he was issued a DD Form 258A (Undesirable Discharge Certificate).  He completed 2 years, 10 months and 
28 days of creditable active service and he accrued 256 days of lost time.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he completed only 8 years of civilian education.  His conduct and efficiency ratings in 1961, 1962, and 1963 were, for the most part, rated as “excellent” and “good.”  He also had  “unsatisfactory” ratings in 1963 and 1964.

8.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

10.  Army Regulation 635-200 (Personnel Separations):

	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, in effect, that his undesirable discharge should be upgraded to honorable because he was not granted adequate counsel.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time, to include affording him adequate counsel.  The character of the discharge is commensurate with his overall record.

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct which includes 156 days of lost time renders his service unsatisfactory.

4.  The applicant's contention that he had a low IQ score is noted.  However, there is no evidence showing that his 8th grade education or a low IQ score were the reason for his misconduct.  In fact his conduct and efficiency during his first couple of years was rated as “excellent” and “good,” indicating he knew how to Soldier.

5.  In view of the foregoing, 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)                                         AR20130002556



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ABCMR Record of Proceedings (cont)                                         AR20130002556



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