IN THE CASE OF: BOARD DATE: 1 September 2009 DOCKET NUMBER: AR20090005889 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. 2. The applicant states that his discharge should be upgraded based on his post-service conduct. He contends that he has done some honorable things since he left the service. 3. The applicant provides three character reference letters and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of 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's DD Form 214 shows he enlisted in the Regular Army on 13 July 1956 for a period of 3 years and was awarded military occupational specialty 911.17 (litter bearer). 3. A DD Form 493 (Extract of Military Records of Previous Convictions) shows that on 29 June 1957 the applicant was convicted by a special court-martial of failing to go to his appointed place of duty and possessing an official pass with intent to deceive. He was sentenced to be confined at hard labor for 2 months, hard labor without confinement for 1 month, to forfeit $50.00 pay per month for 3 months, and to be reduced to E-1. On 29 June 1957, the convening authority approved the sentence. 4. A DD Form 493 shows that on 23 June 1958 the applicant was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty. He was sentenced to forfeit $55.00. On 24 June 1958, the convening authority approved the sentence. 5. A DD Form 493 shows that on 3 July 1958 the applicant was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty. He was sentenced to be reduced to E-1, to perform hard labor without confinement for 30 days, and to forfeit $60.00. On 4 July 1958, the convening authority approved the sentence. 6. A DD Form 493 shows that on 8 October 1958 the applicant was convicted by a general court-martial of wrongful appropriation and leaving his post (sentinel) before he was relieved. He was sentenced to a dishonorable discharge (suspended), total forfeitures, and to be confined at hard labor for 1 year. On 19 January 1959, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 6 months and forfeiture of $50.00 pay per month for 6 months. 7. On 12 March 1959, the applicant's unit commander recommended that a board of officers be convened to determine if the applicant should be discharged prior to completion of his service obligation. 8. The applicant appeared before a board of officers on 15 April 1959. The board found that the applicant gave evidence of habits and traits of character manifested by misconduct which rendered retention in the service undesirable and recommended that the applicant be discharged from the service because of unfitness and that he be furnished an undesirable discharge. On 9 June 1959, the officer exercising general court-martial jurisdiction approved the recommendation. 9. On 11 June 1959, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) for habits or traits of character manifested by misconduct. He had served a total of 2 years, 6 months, and 3 days of creditable active service. His DD Form 214 shows that his separation program number is 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities). 10. In support of his claim, the applicant provided three character reference letters from his physician and two friends. They attest that the applicant is professional, that he has always manifested a strong character marked by patience, integrity, and unselfishness, that he has always been a credit to his family and community, and that he volunteered for the past 11 years as a religious instructor at his parish. 11. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 12. Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character. The regulation provided for the separation of personnel who: (1) give evidence of an antisocial or amoral trend, chronic alcoholism, drug addiction, pathological lying, or misconduct; (2) possess unclean habits; (3) repeatedly commit petty offenses not warranting trial by court-martial; (4) are habitual shirkers; (5) are recommended for discharge by a disposition or other board of medical officers because they possess a psychopathic (antisocial) personality disorder or defect, or are classified as having "no disease" by the board, and their record of service reveals frequent disciplinary actions because of infractions of regulations and commission of offenses, or it is clearly evident their complaints are unfounded and are made with the intent of avoiding service; or (6) demonstrate behavior, participation in activities, or associations which tend to show that they are not reliable or trustworthy. The regulation also provided that when discharged because of undesirable habits or traits of character an Undesirable Discharge Certificate would be furnished. 13. Army Regulation 635-200 (Personnel Separations) sets forth the basic policy governing the separation of enlisted personnel. 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate. 14. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. Good post-service conduct alone is normally not a basis for upgrading a discharge. 2. The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded. 3. The applicant's record of service included two summary court-martial convictions, one special court-martial conviction, and one general court-martial conviction. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge. 4. 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. 5. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 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)  AR20090005889 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)  AR20090005889 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1