RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20070003119 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. Rodney E. Barber

Member

Mr. Rowland C. Heflin

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 an honorable discharge.

2.  The applicant states, in effect, that he was 19 years of age when his problems began between him and a married fellow Soldier who tried to date the same woman.  The fellow Soldier took his Class-A pass from his foot locker, and after he went off post without his pass he was written up and restricted to the company area.  

3.  Later he and the fellow Soldier agreed to go to the gym and box.  He states that the fellow Soldier quit and the applicant was later brought up on court-martial charges.  The applicant feels that his punishment was too harsh and the Army could have handled this matter better.

4.  The applicant provides a half-burned copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the ending period 
10 November 1959 and a United States of America Certificate of Military Service, dated 29 January 2007.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 14 November 1956 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 410.00 (Ammunition Helper).

3.  A DD Form 789 (Unit Punishment Record) shows that the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 25 May 1959 and 23 June 1959 for being off post without a pass, on 26 May 1959 for failure to obey a direct order from a Noncommissioned Officer (NCO), and on 12 June 1959 for being absent from quarters after being restricted to quarters.

4.  On 15 July 1959, the applicant underwent a psychiatric examination. The psychiatrist opined that the applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right.  

5.  On 4 August 1959, the applicant was convicted by a summary court-martial of being absent from his appointed place of duty from 1000 hours on 27 July 
1959 to 2300 hours on 27 July 1959 and for disobeying a lawful order from an NCO.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of $25.00 for 1 month.

6.  On 19 September 1959, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-208 (Personnel Separations) for unfitness.  The reason cited by the commander was the applicant’s constant violation of pass and uniform regulations, no regard for military standards or orders, sleeping during duty hours and performing duties only when under constant and strict supervision, and for receiving a summary court-martial.  

7.  On 21 September 1959, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-208.  The applicant declined counsel, waived his right to be heard by a board of officers, and declined to submit a statement on his own behalf.

8.  On 4 November 1959, the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge.  

9.  On 10 November 1959, the applicant was separated under the provisions of Army Regulation 635-208.  He had completed 2 years, 11 months, and 27 days of creditable active service and he had 32 days of lost time due to being in confinement.  His DD Form 214 shows in Item 13 (Character of Service) the entry "UNDER OTHER THAN HONORABLE CONDITIONS."  

10.  Army Regulation 635-208 set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  At the time, an undesirable discharge was normally issued.

11.  Army Regulation 635-200, paragraph 3-7a, provides 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.  

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows when the applicant was recommended for administrative separation he declined military counsel; waived consideration by a board of officers; and that he elected not to provide a statement in his own behalf prior to his discharge from the service.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he was convicted by one summary court-martial and received four Article 15s.  He had completed 2 years, 11 months, and 27 days of creditable active service before his separation with a total of 32 days of lost time due to being in confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge or general discharge.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PMS__  __REB __  __RCH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____ Paul M. Smith __
          CHAIRPERSON




INDEX

CASE ID
AR20070003119
SUFFIX

RECON

DATE BOARDED
28 AUGUST 2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0133.0000
2.
144.0000.0000
3.

4.

5.

6.