RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060016772 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

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 be upgraded to honorable.

2.  The applicant states, in effect, that the length of his service and the insignificance of his misconduct should allow him to receive a "good conduct" discharge.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 July 1957, the date of his discharge.  The application submitted in this case is dated 2 October 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 25 October 1954, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 121.10 (Combat Engineer).  

4.  On 17 July 1956, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for missing bed check.  The punishment included 14 days extra duty.

5.  On 17 December 1956, the applicant received NJP for missing bed check.  The punishment included 6 days restriction.

6.  On 2 March 1957, the applicant received NJP for missing bed check.  The punishment included 6 days restriction.

7.  On 6 May 1957, the applicant was convicted by summary court-martial of AWOL.  His sentence consisted of reduction to private first class, pay grade E3.
8.  On 12 June 1957, the applicant was convicted by special court-martial of wrongful possession of what purported to be a pass.  His sentence consisted of confinement at hard labor for 3 months and forfeiture of $65.00 pay per month for 3 months.  

9.  The applicant's Report of Medical Examination (SF 88), dated 12 June 1957, shows that he underwent a medical examination for separation.  The medical doctor did not indicate any abnormality in the applicant's physical condition and found him qualified for separation.

10.  On 12 June 1957, the applicant’s commander initiated separation under the provisions of Army Regulation 635-208 for unfitness.  The commander stated that the applicant had received three NJP, two courts-martial, and was under arrest in quarters pending action by the convening authority on his last conviction.

11.  On 19 June 1957, a board of officers convened to determine whether the applicant should be retained in the United States Army or be discharged under the provisions of Army Regulation 635-208 for unfitness.  The applicant and his counsel were present.  The applicant’s commander stated that, while the applicant could possibly be rehabilitated, it was not worth his time to try.  The applicant’s squad leader stated that the applicant had been trying hard to do better because he realized the seriousness of receiving an undesirable discharge.  The applicant spoke on his own behalf, saying that he wanted to stay in the United States Army and did not want an undesirable discharge.  His counsel was the last to speak, saying that the applicant had embarked on a part of his career which had caused him a great deal of trouble.  He further said that it would be a shame to give him an undesirable discharge because he felt that with a little help he could be rehabilitated.  The board considered the evidence and found the applicant undesirable for further service because of repeated acts of misconduct, and the fact that he was a constant shirker and was unreliable.  It recommended that the applicant be discharged from the service because of undesirability and that he be furnished an Undesirable Discharge Certificate.

12.  The appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  On 24 July 1957, the applicant was discharged accordingly.  He had completed 2 years, 8 months, and 11 days of creditable active service, and had 20 days of lost time due to AWOL and confinement.

13.  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.

14.  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 the applicant’s record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  While the applicant may feel that his misconduct was a "small incident", in fact, he committed several acts of increasing seriousness and frequency and his "constant shirking" alone qualified him for an undesirable discharge.   Therefore, his undesirable discharge should not be upgraded.




3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 July 1957; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
23 July 1960.  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

RSV __  __DLL __  __WFC__       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.




__      William F. Crain______
          CHAIRPERSON




INDEX

CASE ID
AR20060016772
SUFFIX

RECON
  
DATE BOARDED
20070531 
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19570724
DISCHARGE AUTHORITY
AR 635-208. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.
2.

3.

4.

5.

6.