PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 7 October 1998
         DOCKET NUMBER: AC97-11714


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. James E. Vick		Member
Mr. Luther L. Santiful		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD) or a general, under honorable conditions discharge (GD).

3. The applicant states in effect, that the lifetime penalty he has suffered because of his under other than honorable conditions discharge, which was based on petty offenses, is an injustice; that he would not have received such a negative discharge under current standards, without being afforded counseling and treatment as was recommended by medical authorities at the time. The applicant also contends that he had no legal counsel; that he received very little counseling in regard to his family problems; and that his family problems were given no consideration at his administrative separation board.

4. The applicant’s military records show that he initially enlisted in the Regular Army on 29 December 1955 for 3 years, and reenlisted on 8 April 1958 for
an additional 6 years.

5. The applicant’s record shows that he attained the rank of private first class, successfully completed the basic airborne course for which he was awarded the parachutist badge; and had earned excellent conduct and efficiency ratings at all assignments until his last. The applicant’s disciplinary record included conviction by three summary courts-martial and his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on three separate occasions. All these proceedings took place in a short period of time between August and October 1958. They were based on minor offenses related to absences from duty, and totaled only 4 days of lost time.

6. The applicant first expressed to his unit commander that he was having problems at home during a counseling session in mid August 1958 in which he indicated that his wife was running around on him and that he was concerned for the welfare of his young son. Later in the month the applicant was again counseled by the unit commander for a short period of AWOL. During this session the applicant conveyed to the unit commander that he had received a discouraging letter from his wife; that the situation had become intolerable; and that he felt it necessary to get home anyway possible. The unit commander discussed with the applicant the possibility of a leave but because the applicant was in an excess leave status this was not possible. The unit commander recommended he write home to obtain letters or statements in support of a compassionate reassignment.



7. In late September 1958, after the applicant had been court-martialed and accepted another Article 15, the unit commander again discussed the situation with the applicant at which time the applicant indicated that he did not think a compassionate reassignment was possible and that getting discharged under
AR 635-208 was his only way out. The unit commander appealed to the applicant to straiten out and advised the applicant that he would write the applicant’s minister in an attempt to compile the necessary statements for a compassionate reassignment. The evidence of record from this point on discusses the applicant’s misconduct but does not further discuss attempts to obtain documentation for a compassionate reassignment. The unit commander never clarifies if he actually wrote to the applicant’s minister or attempted to assist the applicant in obtaining the necessary documentation to support pursuing a compassionate reassignment.

8. On 13 October 1958 the applicant was medically evaluated by the post surgeon, based on a referral from the unit commander, in connection with elimination proceedings under the provisions of AR 635-208. In his report the surgeon indicated that, in his opinion, the applicant could and would be a productive soldier if his family problems could be dealt with. He recommended that the applicant be given a compassionate reassignment rather than being processed for elimination under a 208.

9. On 29 October 1958 the applicant’s unit commander recommended a board of officers convene to consider the applicant’s elimination, under the provisions of AR 635-208. The unit commander indicated that although the applicant had been an outstanding soldier, as evidenced by his record, that he was now consumed by his personal problems; that his misconduct would continue until he could get home; that he wanted to get home no matter how; and that the consequences of the discharge did not matter to the applicant. The applicant was afforded his rights and waived his right to counsel. The Board convened on 6 November 1958. The applicant was present throughout the proceedings and was given the opportunity to question witnesses. The Board recommended that the applicant be eliminated from service with a UD by reason of giving habits and traits of character manifested by misconduct; and his demonstrated behavior which tends to show that he is not reliable or trustworthy.

10. On 14 November 1958 the appropriate authority approved the findings of the board and directed the applicant’s discharge with a UD. Accordingly, on 7 April 1958 the applicant was discharged with a UD after completing 7 months and 29 days of his current enlistment, a total of 2 years, 11 months, and 3 days of active military service, and accruing 4 days of time lost due to AWOL.

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

12. Army Regulation 635-208, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined unfit for further service.

CONCLUSIONS:

1. The applicant’s separation under the provisions of AR 635-208 was administratively correct and in conformance with the applicable regulations. There is no indication that the discharge process contained procedural error that could have jeopardized the applicant’s rights.

2. While the Board does not condone the applicant’s misconduct, consideration was given to the fact that the infractions of discipline were minor, strictly military in nature, and not otherwise a serious offense against society. The evidence of record suggests that the applicant’s misconduct was a direct result of personal problems he was experiencing and was his way to get home. This is evidenced by the medical evaluation of the post surgeon which recommended a reassignment, and by statements made by the unit commander. Although the applicant did commit the misconduct for which he was discharged, the Board noted that all his NJP’s and courts-martial convictions were all for minor offenses with most being related to absences from duty which totaled a mere 4 days of time lost.

3. The Board noted the applicant’s contentions, carefully reviewed the evidence of record, and determined that while the discharge action was proper and the applicant’s misconduct clearly diminished his quality service below that meriting a fully honorable discharge; it did not rise to the level warranting an undesirable discharge. All indications are that the applicant’s misconduct was an aberration of his normal good conduct. His infractions of discipline took place in a very short period of time and were his reaction to the personal problems he was experiencing. Therefore, the Board concludes, in view of the honorable nature of the preponderance of the applicant’s service, that his discharge should be upgraded to a general, under honorable conditions discharge. To do otherwise would ignore his generally honorable service, work an injustice upon him and his heirs by permanently attaching a stigma to his total military service, and possibly denying them the right to certain VA benefits when the overwhelming majority of his service was served under honorable conditions.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing the individual concerned was separated from active duty on 10 December 1958 with a general, under honorable conditions discharge.

2. That Department of the Army issue the individual concerned a general, under honorable conditions discharge certificate from the Regular Army, dated
10 December 1958, in lieu of the UD of the same date now held by him.

3. That so much of the application as is in excess of the foregoing be denied

BOARD VOTE:

________ ________ ________ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON