BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140017380 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he exercised poor judgment at the time and made a terrible mistake that has bothered him all of these years.

3.  The applicant provides no additional documents with his application.

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 Regular Army on 28 August 1959 for a period of 3 years and training as a records clerk.  He completed basic training at Fort Dix, New Jersey and advanced individual training at Fort Monroe, Virginia before departing for assignment in France on 18 January 1961.

3.  On 23 May 1961, he was convicted by a summary court-martial of being absent without leave (AWOL) from 7 May to 15 May 1961.  He was sentenced to a reduction to the pay grade of E-1 and a forfeiture of $60.00.

4.  On 6 June 1961, he was again convicted by a summary court-martial of failure to go to his appointed place of duty at the time prescribed.  He was sentenced to hard labor without confinement for 15 days and a forfeiture of $50.00.

5.  On 2 October 1961, unit punishment was imposed against him for breaking restriction.

6.  On 20 October 1961, he was convicted by a special court-martial of being AWOL from 18 September to 19 September 1961 and for falsifying a document.  He was sentenced to confinement at hard labor for 1 month and a forfeiture of $55.00 pay for 4 months.

7.  On 24 November 1961, the applicant’s commander initiated action requesting board action be taken against the applicant under the provisions of Army Regulation 635-209 to separate him from the service.  He cited as the basis for his request the applicant’s disciplinary record, poor appearance, failure to obey orders, and his substandard pattern of conduct.  Additionally, he was pending trial by court-martial for destruction of government property.

8.  The applicant declined the opportunity to consult with counsel and waived a board hearing.

9.  On 5 December 1961, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate. 

10.  Accordingly, on 18 January 1962, he was discharged under honorable conditions under the provisions of Army Regulation 635-209 for unsuitability due to apathy – defective attitude.  He had served 2 years, 3 months, and 23 days of active service and he had 28 days of lost time due to being AWOL and in confinement.

11.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

12.  Army Regulation 635-209, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unsuitability when it was determined that it was unlikely that an individual would develop sufficiently to participate in further military training and/or become a satisfactory soldier.  An honorable or general discharge was authorized.  

13.  Army Regulation 635-200 paragraph 3-7a provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-209 for unsuitability was accomplished in accordance with the applicable regulations with no violations of any of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been considered by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service during such a short period of time.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140017380



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ABCMR Record of Proceedings (cont)                                         AR20140017380



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