RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060012361 


	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, in effect, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge was due to circumstances caused by alcohol dependence.  He also states, in pertinent part, that the Army did not offer any rehabilitation, and that his discharge was overly severe punishment for his off-duty incidents.  He further states, in effect, that his on-duty performance, as documented in his military records, was fully honorable, and requests to be relieved of the punishment he has endured for his youthful lack of judgment.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a Certification of Military Service, eight third-party letters of support, and paperwork related to his discharge under the provisions of Army Regulation 635-208 (Personnel Separations, Discharge, Unfitness) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 19 October 1956, the date of his discharge from the Regular Army.  The application submitted in this case is dated 22 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 majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

4.  The available records show that the applicant enlisted in the Regular Army on 8 December 1953.  He completed basic and advanced individual training and was awarded military occupational specialty 111 (Light Weapons Infantryman).  

5.  On 17 January 1955, the applicant was tried and convicted by a summary court-martial for going absent without leave (AWOL) from 3 January 1955 to on or about 15 January 1955.  His sentence included a forfeiture of $25.00 per month for 1 month and an oral admonishment.

6.  The applicant’s military records contained a DD Form 789 (Unit Punishment Record), which essentially shows that he was reprimanded for being late on 
26 June 1955.  This document also shows that he received nonjudicial punishment on two occasions, both for misconduct and being drunk and disorderly.  Collectively, his punishment consisted of one reduction in rank and 14 days of restriction.

7.  On 10 February 1956, the applicant was tried and convicted by a special court-martial for unlawfully striking an officer in the face with his fist.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $55.00 per month for 1 month.  On 13 April 1956, the unexecuted portion of his confinement at hard labor was remitted.

8.  On 23 August 1956, the applicant was tried and convicted by a summary court-martial for violating a lawful general regulation.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of $50.00.

9.  In an undated letter, the applicant’s company commander recommended that he appear before a board of officers convened under the provisions of Army Regulation 635-208 to determine if he should be separated from the service prior to his expiration of term of service (ETS).  In his request, the applicant’s company commander stated, in pertinent part, that the applicant was a satisfactory Soldier only on duty, but that during his off-duty hours he became intoxicated and could not control himself.  The applicant’s company commander also stated that the applicant would either go AWOL or start fights with whomever he saw.  The applicant’s company commander also stated that the applicant had been sent to the Rehabilitation Center at Grailsheim, Germany, and was released early on a suspended sentence, and that continued counseling by his superiors also failed to remold the applicant into a useful Soldier, and that he regularly attended the character guidance classes scheduled for his unit.


10.  On 13 September 1956, a board of officers convened to determine if the applicant should be discharged from the service under the provisions of Army Regulation 635-208 prior to his ETS.  The applicant did not desire to challenge any member of the board for cause, and stated that he had sufficient time to prepare his case.

11.  The applicant’s company commander appeared before this board of officers, and essentially stated that the applicant received numerous delinquency reports, all for drinking.  He also stated, in pertinent part, that in the field, the applicant was an exceptionally fine Soldier, but in garrison, he could not be trusted.  The applicant’s company commander also stated, in pertinent part, that he had pointed out to the applicant what drinking would get him, and that the applicant answered by stating that he just got drunk and did not mean to get into trouble.  The applicant’s company commander also stated that he would like to have the applicant with him in combat, and could trust him 100 percent in combat, but that he realized that they were not in combat at the time.  The applicant’s company commander concluded by stating that under the circumstances at the time, the service would benefit if he were discharged, and recommended that he be discharged under the provisions of Army Regulation 635-208.  Two other witnesses essentially gave the same testimony as the applicant’s company commander.  

12.  During this board of officers, a sergeant (SGT) was called as a witness on behalf of the applicant.  This SGT was sworn in, and testified that the he had been the applicant’s squad leader since January 1956, and that the applicant was the best man in the squad.  This SGT also stated that the applicant won the “Soldier of the Day” of the company three or four times a week, and took over the squad when he and his assistant were not there.  Under cross-examination, this SGT essentially stated that he had never seen the applicant in town, but was familiar with his record.  This SGT also stated, in effect, that he was not proud of the applicant’s record, as he thought a Soldier in the United States Army should be outstanding everywhere he goes, and believed he would not want the applicant in a peacetime Army.

13.  Also during this board of officers, another SGT was called as a witness on behalf of the applicant.  This SGT, after being sworn in, testified that he supervised the applicant on guard duty and kitchen police, and that he performed his kitchen police without any trouble, and always walked his post on guard duty properly.  


14.  The applicant had his rights explained to him as a witness in his own behalf by the Record of the Board, and he elected to make an unsworn statement.  The applicant was again advised of his rights under Article 31 of the Uniform Code of Military Justice.  The following in the substance of the applicant’s unsworn statement:  “I am the respondent in this board proceeding.  I have been in the Army thirty-four (34) months and I would like to serve the rest of my time.  I want to go back to school when I finish in the Army.  I have boxed on the regimental team and have played basketball on the company team.  I have quit drinking and I have never gone off post without a pass.”

15.  The board of officers, having carefully considered the evidence of record, determined that the applicant gave evidence of traits other than those indicating discharge of physical or mental conditions as provided for in Army Regulation 600-450, which rendered his retention in the service undesirable, and recommended that he be discharged from the service because of unfitness under the provisions of Army Regulation 635-208, and that a DD Form 258A (Undesirable Discharge Certificate) be furnished to him.  The board of officers adjourned on 13 September 1956.  On 19 October 1956, the applicant was discharged accordingly.

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

17.  The applicant provided eight third-party letters of support, one which was undated, three dated in 1983, two dated in 1989, and two dated in 2000.  These third-party letters essentially stated that the applicant was a dependable, conscientious hard worker who worked as a rancher, caring for race horses, and working in the movie industry in some capacity.  

18.  The applicant essentially stated that the Army did not offer any rehabilitation for his drinking problem.  However, evidence of record shows that the applicant was counseled by his superiors, but that it failed to remold him into a useful Soldier.  Evidence of record also shows that he regularly attended the character guidance classes scheduled for his unit.  Although there is no record of the applicant receiving any specific clinical counseling for his drinking problem, there is also no record of the applicant requesting assistance from the Army for his drinking problem.   



19.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities, sexual perversion, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

20.  Army Regulation 635-200 (Personnel Separations) provides, in pertinent part, that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

21.  Army Regulation 635-200 also provides, in pertinent part, 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.
 
22.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  There is no evidence that the applicant's separation was not in compliance with the applicable regulation in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.
3.  A review of the applicant's record of service, which included nonjudicial punishment and conviction by court-martial on three occasions, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

4.  The third-party letters of support regarding the applicant's post service achievements and conduct are noted.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge, and the ABCMR does not upgrade discharges based solely on the passage of time.

5.  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.

6.  Based on the foregoing, there is insufficient basis for upgrading the applicant’s undesirable discharge to an honorable or general discharge.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 October 1956; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
18 October 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

___YM  _  ___LD _ _  __GP ___  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.




____Yolanda Maldonado_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012361
SUFFIX

RECON
20070515
DATE BOARDED

TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19561019
DISCHARGE AUTHORITY
AR 635-208 
DISCHARGE REASON
UNFITNESS
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.5100.0000
2.

3.

4.

5.

6.