RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011364 


	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.



	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 a general under honorable conditions discharge or an honorable discharge.

2.  The applicant states that his ability to serve was impaired because of his family problems, his use of alcohol, and his personal problems.  

3.  The applicant provides personal statements; a Questionnaire about Military Service; his personal statements in support of a Post Traumatic Stress Disorder (PTSD) questionnaire; a letter from a psychotherapist; and a letter from a social worker.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 July 1954.  The application submitted in this case is dated 11 August 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 complete military records are not available to the Board.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

4.  The applicant enlisted in the Regular Army on 29 December 1951 for a period of three years.  He was assigned to Korea and completed 1 year, 5 months, and 4 days of foreign service.  He was advanced to private first class on 17 February 1953.

5.  On 17 February 1954, the applicant was convicted by a summary 
court-martial of failing to go to his appointed place of duty on two separate occasions.  He was sentenced to restriction to the limits of Company A, Infantry School Detachment for 15 days and a reduction to private E-2.

6.  The applicant’s reconstructed record contains a portion of a Fort Benning (FB) Form 41 (Unit Punishment Book).  This document indicates the applicant was punished for driving without a driver license on 23 February 1954 at Fort Benning, Georgia.  His punishment consisted of restriction for 7 days.  

7.  On 6 April 1954, 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 a forfeiture of $30.00 for one month.

8.  On 28 May 1954, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 4 May 1954 to 26 May 1954.  He was sentenced to confinement at hard labor for 3 months, a reduction to private E-1, and a forfeiture of $60.00 pay for 3 months.  

9.  The applicant was examined on 7 June 1954 at the Military Dispensary Service, U.S. Army Hospital, Fort Benning, Georgia.  The report of findings indicated the applicant was not psychotic and was able to differentiate right from wrong and to adhere to the right.  The examining physician indicated the applicant was essentially normal and had no disqualifying mental or physical defects sufficient to warrant discharge for medical reasons.  

10.  The applicant’s company commander submitted a request for a board of officers on 10 June 1954 because of the applicant’s constant infractions of the Uniform Code of Military Justice.  The company commander stated the applicant had no desire or indication to improve either the performance of his duties or his personal appearance.  The company commander also stated the applicant evidenced a considerable lack of interest which counseling had failed to correct.

11.  On 21 June 1954, a board of officers convened under the provisions of Army Regulation 615-368.  The board recommended the applicant be discharged from the service because of unfitness with issuance of an undesirable discharge.

12.  On 29 June 1954, the convening authority approved the recommendations of the board and directed the applicant be discharged from the service under the provisions of Army Regulation 615-368 for unfitness with issuance of an Undesirable Discharge Certificate.

13.  The applicant’s DD Form 214 shows he was discharged from active duty 
on 20 July 1954 under the provisions of Army Regulation 615-368 for unfitness.  He completed 2 years, 4 months, and 5 days of active military service with 78 days of lost time due to AWOL and confinement.

14.  The applicant provided a letter, dated 12 July 2006, from a psychotherapist. The psychotherapist indicated he no longer had the records of the applicant’s psychotherapeutic treatment for marital stress, depression, and alcoholism, but he did recall seeing the applicant in the late 1980’s for a couple of years.

15.  The applicant provided an undated letter from a licensed social worker. The social worker indicated he had worked with the applicant since 30 September 2003 at the Insight Recovery Center in Saginaw, Michigan.  Based on the history the applicant described, material reviewed in assessment, and treatment sessions, he diagnosed the applicant as having alcohol dependence and emphysema.  

16.  The applicant provided personal statements in support of his request for an upgrade.  He stated that he had a hard time adjusting to life when he returned from Korea.  He could not sleep at night and he started drinking heavily.  He got married in August 1953 and divorced in March 1954.  He stated that he got drunk and went AWOL in May 1954.  Although he said he did not want a discharge, he was discharged anyway.  He was told that he could be upgraded anytime after six months.  

17.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

18.  Army Regulation 635-200 governs the separation of enlisted personnel.  Paragraph 3-7a, in pertinent part, states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

19.  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.
20.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations.

2.  The applicant's service record shows he was convicted twice by a summary 
court-marital for failing to go to his appointed place of duty and a special 
court-martial for being AWOL for 22 days.  His reconstructed record indicated he was punished for driving without a license at Fort Benning, Georgia.  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 upgrade to an honorable or general discharge.

3.  The applicant contended that his ability to serve was impaired because of his family problems, his use of alcohol, and his personal problems.  He expressed in his personal statements that he had a hard time adjusting to life after returning from Korea.  He stated that he began to drink heavily due to his personal problems.  The letters from the psychotherapist and the social worker are noted.  However, these documents were prepared approximately 50 years after the applicant’s discharge and they are not sufficiently mitigating to warrant an upgrade in this case.  

4.  Although the applicant stated that he was told that his discharge would be upgraded after 6 months, there is no policy or regulation within the Army which allows automatic upgrading of discharges.

5.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, there is no basis for granting the applicant's request for an upgrade of his discharge.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 July 1954; therefore, the time for the applicant to file a request for correction of any error or injustice expired on          19 July 1957.  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

x______  x______  x______  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.




x_______
          CHAIRPERSON




INDEX

CASE ID
AR20060011364
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19540720
DISCHARGE AUTHORITY
AR615-368
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.000
2.

3.

4.

5.

6.