RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060010876 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. David K. Haasenritter

Member

Mr. Ronald D. Gant

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 his undesirable discharge be upgraded to general under honorable conditions.

2.  The applicant states, in effect, that he was only 20 years old at the time of his discharge and was undergoing a complicated divorce.  He further states that he was charged with being absent without leave (AWOL) because he returned to base 2 hours late.  He also says that he has been a model citizen all of these years and had no idea at the time the complications his discharge would cause him.

3.  The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 July 1956, the date of his discharge.  The application submitted in this case is dated 17 July 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.  On 3 July 1954, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 120.00 (Pioneer).  

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on five occasions between 9 March 1955 and 22 June 1956.  Four of these NJP's were for AWOL (less than a day each).  The punishments included extra duty and restriction.  The remaining NJP was for violation of Article 92 (Disobedience).  The specifics are not available in records.  His punishment included a reduction to private, pay grade E2.

5.  On 20 June 1956, the applicant was examined by a medical officer and was found to have no disqualifying physical or mental disability warranting a medical separation.  The applicant was found to be free from mental defect, disease or derangement and was able to distinguish right from wrong and to adhere to the right. 

6.  On 21 June 1956, the applicant’s unit commander referred him to a Board of Officers, for the purpose of determining whether or not he should be discharged prior to the expiration of his term of service.  

7.  On 21 June 1956, the applicant received legal counseling and agreed to be represented by appointed counsel. 

8.  On 16 July 1956, the applicant appeared before the Board of Officers without counsel.

9.  On 16 July 1956, the Board of Officers recommended that the applicant be discharged from the service under the provisions of Army Regulation 635-208 for unfitness and that he be issued an Undesirable Discharge Certificate.

10.  On 19 July 1956, the separation authority approved the action and directed issuance of an Undesirable Discharge Certificate.  On 26 July 1956, the applicant was discharged accordingly.  He had completed 2 years and 17 days of creditable active service and had 1 day of lost time.

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

12.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provides that: "the setting of arbitrary standards, such a certain number of trials by courts-martial, as a prerequisite to administrative elimination as a test of 'effective rehabilitation' violates the concept of individual evaluation."  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  There is no evidence of record, nor has the applicant provided sufficient evidence to support upgrade of his discharge.

2.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. 

3.  The applicant's contention that he has been a model citizen since his discharge is not sufficiently mitigating to overcome his record of indiscipline.

4.  Therefore, his undesirable discharge should not be upgraded.

5.  Records show the applicant should have discovered the alleged errors now under consideration on 26 July 1956; therefore, the time for the applicant to file a request for correction of any error expired on 25 July 1959.  The applicant did not 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

_RDG___  __JCR __  ___DKH__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




__   Jeffrey C. Redmann____
          CHAIRPERSON




INDEX

CASE ID
AR20060010876
SUFFIX

RECON
 
DATE BOARDED
20070208 
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR 635-208. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.5000
2.

3.

4.

5.

6.