RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060010738 


	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. Gerard W. Schwartz

Acting Director

Ms. Lisa O. Guion

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm 

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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, in effect, that his undesirable discharge (UD) be upgraded.  

2.  The applicant states, in effect, through a request for assistance from Congressional Representative, that one day in 1955, while serving at Fort Lewis, Washington, performing the duties of a cook, he observed his lieutenant taking boxes from the kitchen and loading them into his car, and that he filed a report of his observations.  He indicates that he was not in any type of trouble and that he did not realize that he had an UD.  He finally points out that there is no signature on his separation document (DD Form 214). 

3.  The applicant provides the following documents in support of his application:  Veterans and Military Authorization Form, dated 12 June 2006; 3 May 1955 
DD Form 214; and Application for Review of Discharge or Dismissal from the Armed Forces of the United States (DD Form 293).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 3 May 1955.  The application submitted in this case is dated 16 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show that he enlisted in the Regular Army and entered active duty on 12 May 1952.  He was trained in, awarded, and served in military occupational specialty (MOS) 1824 (Cook).

4.  The applicant's Service Record (DD Form 230) shows he was promoted to the rank of private first class (PFC) on 29 October 1953, and that this was the highest rank he held while serving on active duty.  It also shows that he was reduced to private/E-2 (PV2) on 19 May 1954 and to private/E-1 (PV1) on 
28 December 1954, and that this was the rank he held on the date of his discharge.
5.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  His record does reveal a disciplinary history that includes the following four separate Special Court-Martial (SPCM) convictions for the offenses indicated:  7 August 1952, for being absent without leave (AWOL) from 9 June 1952 to 1 August 1952; 10 December 1952, for twice being AWOL from 24 August 1952 to 9 September 1952 and from 18 September 1952 to 24 November 1952; 28 December 1954, for being AWOL from 
5 December 1954 to 10 December 1954; and 9 February 1955, for breaking post regulation by not registering his car on 6 January 1955, for not registering and storing his firearm on 7 January 1955, for breaking restriction on 13 January 1955, and for being AWOL from 13 January 1955 to 24 January 1955.  

6.  On 1 March 1955, at the request of his superiors, the applicant underwent a thorough psychiatric examination.  The reasons cited for the request was the applicant’s decreasing effectiveness and repeated AWOL offenses.  He was diagnosed with an “inadequate personality, moderate chronic, #3202, warranting a profile of S-2.  The psychiatric examination reveals that he appeared quiet and somewhat depressed.  However, he was not psychotic and his intellectual endowment appeared to be within average range.  He rationalized freely and had an explanation for almost everything he was confronted with.  Clinically he appeared to be an inadequate, passive, dependent person, whose service motivation was considered to be not too firmly established.  The examination also opined that further attempts to rehabilitate the applicant would not be successful. Further, the psychiatrist found that the applicant was free of any disqualifying mental or physical defects, which would impair his ability to distinguish between right and wrong, and to adhere to the right and refrain from the wrong; and that he had no mental or physical condition sufficient to warrant disposition through medical channels.  The final conclusion of the evaluation was that the applicant’s superiors were justified in desiring his administrative separation because of his inability to continue performing his duty properly and his frequent AWOL episodes.  The recommendation of the examining Psychiatrist was that the applicant be separated from the service under the provisions of AR 615-368.

7.  On 12 April 1955, an administrative separation disposition board convened, at which the applicant appeared, to evaluate if the applicant should be discharged prior to the expiration of his term of service, under the provisions of AR 615-368. The applicant was given the opportunity to speak in his own behalf during the hearing but elected to remain silent.  The board concluded that the applicant’s habits and traits of character rendered his further service undesirable.  They also recommended the applicant receive an UD.  

8.  On 19 April 1955, the appropriate separation authority approved the findings and recommendations of the administrative separation board and directed that the applicant be discharged from the service under the provisions of Army Regulation 615-368, by reason of unfitness, and that he be issued an UD.  On 
3 May 1955, the applicant was discharged accordingly. 

9.  The DD Form 214 issued to the applicant on 3 May 1955 confirms he was separated under the provisions of Army Regulation 615-368.  It also shows that he completed 1 year, 8 months, and 25 days of creditable active military service and that he accrued 451 days of time lost due to AWOL and confinement.  

10.  The applicant had already exceeded the 15-year statute of limitations to petition the Army Discharge Review Board (ADRB) for an upgrade of his discharge when he submitted his DD Form 293 to that board on 12 June 2006. 

11.  Army Regulation 615-368, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel for misconduct who were determined to have displayed habits and character traits that rendered them undesirable for further service.  Individuals discharged under this regulation would normally be issued an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his UD should be upgraded because he witnessed his lieutenant taking boxes from the kitchen and he was subsequently given an UD as a result was carefully considered.  However, there is insufficient evidence to his claim.

2.  The evidence of record clearly shows the applicant had an extensive disciplinary history that included four separate SPCM convictions for a myriad of offenses, and that he accrued 451 days of time lost due to AWOL and confinement during his active duty tenure.  This record of misconduct clearly supported his UD, and diminished the quality of his service below that meriting either a general, under honorable conditions discharge or honorable discharge.  

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, his UD accurately reflects the overall quality of his and undistinguished record of service.  

4.  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.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 May 1955.  Therefore, the time for him to file a request for correction of any error or injustice expired on 2 May 1958.  He failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEA  _  __SWF  _  __RSV  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____James E. Anderholm__
          CHAIRPERSON




INDEX

CASE ID
AR20060010738
SUFFIX

RECON
NO
DATE BOARDED
2007/03/06
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1955/05/03
DISCHARGE AUTHORITY
AR 615-368
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000
2.

3.

4.

5.

6.