RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	21 August 2007  
	DOCKET NUMBER:  AR20070004029 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine Moya

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 general discharge, under honorable conditions, be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that his general discharge should show that it was upgraded to an honorable discharge.  He does not understand why he should be marked if his discharge was changed to honorable.  However, it does not show on his records as such. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his request.

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 is requesting correction of an injustice, which occurred on 20 November 1957, the date of his discharge.  The application submitted in this case is dated 16 March 2007.

3.  The applicant's military records show he enlisted in the Regular Army on 9 December 1953.  He was trained as a heavy weapons infantryman in military occupational specialty (MOS), 112.70.

4.  A 3AA Form 221-R, (Unit Commanders Evaluation Data), shows that the applicant was absent without leave (AWOL) from 17 to 29 August 1953, from 18 to 19 October 1953, from 14 to 15 December 1953, from 15 to 16 April 1957, and from 3 to 26 September 1957.


5.  A DD Form 493, (Extract of Military Records of Previous Convictions), shows the applicant received a summary court-martial on 18 April 1957 for being AWOL from 15 to 17 April 1957 and a special court-martial for being AWOL from 3 to 26 September 1957.  His sentences consisted of a reduction to pay grade E-1, forfeitures of pay, and confinement.

6.  On 8 November 1957, the commander recommended that the applicant appear before a board of officers to determine whether he should be discharged prior to his ETS (expiration of term of service) under the provisions of Army Regulation 635-208.  He based his recommendation on the applicant's habits or traits of character and for his having repeatedly committed petty offenses.

7.  On 12 November 1957, he acknowledged receipt of the recommendation and waived his rights.

8.  On 12 November 1957, the applicant appeared before the separation board without counsel.  The separation board found that the applicant was undesirable for further military service and that he had repeatedly committed acts of misconduct.  

9.  The board recommended that the applicant be discharged from the service under the provisions of Army Regulation 635-208 and receive an undesirable discharge.

10.  The applicant was discharged on 20 November 1957, under the provisions of Army Regulation 635-208, for undesirable habits or traits of character.  He had completed 4 years, 4 months, and 2 days of creditable service and had 80 days of lost time.

11.  On 4 October 1972, the applicant applied to the Army Discharge Review Board for an upgrade of his undesirable discharge.  His undesirable discharge was upgraded to general, under honorable conditions, on 20 December 1974.  A new separation document was prepared and forwarded to the applicant without his signature.

12.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character.  Paragraph 2 of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral
trend, chronic alcoholism, drug addiction, pathological lying, or misconduct.  An undesirable discharge was normally considered appropriate.

13.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors, which would tend to jeopardize his rights.  

2.  The type of separation directed and the reasons for that separation were appropriate considering all of the available facts of the case.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant alleges that his general discharge should show that it was upgraded to an honorable discharge and he does not understand why he should be marked if his discharge was changed to honorable.  

5.  The evidence shows that the applicant's undesirable discharge was upgraded to general, under honorable conditions, on 20 December 1974.  However, he is now requesting, in effect, that his general discharge be upgraded to honorable.

6.  The applicant's records currently contain a copy of a new separation document which shows he was issued a general discharge, under honorable conditions, upon approval of his upgrade.  He was issued a new separation document without his signature and a copy was placed in his military records. 

7.  The evidence shows that the applicant's undesirable discharge was not upgraded to an honorable discharge, only a general discharge.  

8.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___CM___  ___DD _  __EM____  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.




_____Conrad V. Meyer______
          CHAIRPERSON




INDEX

CASE ID
AR20070004029
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070821
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19571120
DISCHARGE AUTHORITY
AR 635-208
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.