RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 September 2006
      DOCKET NUMBER:   AR20060004035


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Meribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the undesirable discharge of her deceased
husband, a former service member (FSM) be upgraded.

2.  The applicant states that the FSM was a good Soldier while he was in
the military and he received numerous awards for his good service.  She
goes on to state that while he may have made some mistakes that would cause
his character of service to be undesirable, he was a good Christian man who
attended church.  She also states that she was married to the FSM for 47
years, had three children and he worked for the same company for 40 years
and was well respected.  She continues by stating that she desires the
FSM’s discharge to be upgraded for the satisfaction of her children and
herself as the widow of a veteran.

3.  The applicant provides copies of the FSM’s report of separation (DD
Form 214), his death certificate, marriage license, a letter of
appreciation dated 7 June 1955, a United States Armed Forces Institute
(USAFI) military test report, four certificates of training, and his
completion of his USAFI General Educational Development (GED) in December
1954.

CONSIDERATION OF EVIDENCE:

1.  All of the FSM’s military records are not available to the Board for
review. A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
FSM’s records were partially lost or destroyed in that fire.  However,
there were sufficient documents remaining in a reconstructed record for the
Board to conduct a fair and impartial review of this case.

2.  The FSM was born on 9 June 1934 and was still single when he was
inducted at Montgomery, Alabama on 7 May 1954.  He completed his training
at Fort Jackson, South Carolina and was transferred to Fort Monroe,
Virginia, for assignment to an anti-aircraft artillery battery.  He
performed the duties of a gun crewman, radio operator and radar operator.
He was advanced to the pay grade of E-3 on 20 January 1955.

3.  On 13 October 1955, the FSM underwent a neuropsychiatric examination at
Portsmouth Naval Hospital regarding his misconduct and was deemed to be
sane and competent to distinguish right from wrong and to follow the right.
 The
examining official opined that the event was an impulsive experience and
that the FSM was remorseful and dejected.  The examining official
recommended that consideration be given an administrative discharge instead
of disciplinary action.

4. The FSM was reassigned to a unit at Fort Eustis, Virginia on 8 November
1955 and was immediately placed in confinement pending a military police
investigation regarding the applicant’s illegal conduct with a minor child
on 9 October 1955.

5.  The FSM was released from confinement on 2 December 1955 and on
5 December 1955, his commander submitted a request to convene a board of
officers to determine if the FSM should be separated from the service under
the provisions of Army Regulation 615-368, for unfitness.

6.  On 4 January 1956, he underwent a mental status evaluation.  The
examining official opined that there were no disqualifying medical or
psychiatric disorders that would contraindicate administrative separation.


7.  On 5 January 1956, the FSM was officially notified that he would appear
before a board of officers for the purpose of considering whether to
separate him from the service before his expiration of term of service
because of unfitness due to undesirable traits of character.

8.  On 6 January 1956, the FSM appeared before aboard of officers
represented by counsel.  His counsel submitted character references from
members of his hometown and chain of command as well as certificates of
appreciation and training.  The FSM elected to make a sworn statement in
which he stated that he had never been in any trouble before and that he
was not sure how the incident had happened, that he had not planned it or
even thought about it.  He went on to state that he did not know why he
would do such a thing, that he regretted it ever happened and that he did
not feel that it would ever happen again.  He stated that he desired to
finish his time in the service and receive a regular discharge.

9.  The board of officers determined that while an undesirable discharge
was harsh punishment for one admitted act, a general discharge was too
lenient for an act of that nature.  The board determined that the
circumstances of his case gave evidence of unfitness within the meaning of
Army Regulation 615-368 and recommended that he receive an undesirable
discharge for undesirable traits of character.

10.  The appropriate authority (a brigadier general) approved the findings
and recommendations of the board of officers on 13 January 1956.

11.  Accordingly, he was discharged under other than honorable conditions
on 19 January 1956, under the provisions of Army Regulation 615-368 for
unfitness – traits of character rendering retention in service undesirable.
 He had served 1 year, 8 months and 13 days of total active service and his
only award was the National Defense Service Medal.

12.  On 5 April 1956, the FSM applied to the Army Discharge Review Board
(ADRB) for an upgrade of his discharge.  He offered no new evidence or
argument and requested that the ADRB review the evidence of record to
determine if his discharge warranted an upgrade.

13.  After reviewing the evidence of record, the ADRB determined that his
discharge was both proper and equitable under the circumstances and voted
to deny his request on 22 May 1956.

14.  Army Regulation 615-368, in effect at the time, set forth the basic
authority for the separation of enlisted personnel by reason of unfitness.
That regulation provided for the discharge of individuals who had
demonstrated their unfitness by giving evidence of habits and traits of
character manifested by misconduct.  An undesirable discharge was normally
considered appropriate.

15.  Army Regulation 635-5, in effect at the time, served as the authority
for the preparation of the DD Form214.  It provides, in pertinent part,
that a character of service will be issued that reflects the individuals
character of service as determined by the commander at the time.

16.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.  As a matter of compassion, the Board has historically
not enforced or invoked the statute for the next-of-kin of FSMs.

DISCUSSION AND CONCLUSIONS:

1.  The FSM’s administrative separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate given the information contained in the available records.

3.  The applicant’s contention that the FSM’s discharge should be upgraded
because overall he was a good Soldier and a good person has been noted.
However, the evidence of record shows that the board of officers considered
the FSM’s overall good record of service up until the point of his
misconduct, when it determined that his act of misconduct warranted an
undesirable discharge.

4.  It also appears that his chain of command took his good service and the
circumstances into account when it elected to proceed with board action
instead of preferring court-martial charges that could have resulted in his
receiving a felony conviction and a bad conduct or dishonorable discharge.

5.  It is also noted that the convening authority was not required to
accept the findings and recommendations of the board of officers and could
have elected to give the FSM a better discharge.  However, under the
circumstances, he determined that the discharge recommended was
appropriate, as did the ADRB when it subsequently reviewed his case.

6.  While the Board does not dispute the FSM’s post-service character, his
discharge properly reflects the misconduct for which he admitted at the
time and for which he could have received a much harsher punishment had he
not had good service up until the time of his misconduct.  Given the nature
of his misconduct, his service simply does not rise to the level of a
general discharge.

7.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JA____  ___ML __  ___TR __  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.





                                  ____James Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004035                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1956/01/19                              |
|DISCHARGE AUTHORITY     |AR 615-368                              |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.       |583/A51.00                              |
|144.5000                |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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