RECORD OF PROCEEDINGS


	IN THE CASE OF:	
				


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070004115 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea M. Nuppenau

Member

Mr. Dennis J. Phillips

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 his undesirable discharge be upgraded.

2.  The applicant states, in effect, that he was young and immature at that time.  He further states that he has matured over the years and realizes that what he did was wrong. 

3.  The applicant provides copies the following documentations in support of his application:

	a.  DD Form 214 (Report of Separation from the Armed Forces of the Unites States).

	b.  Standard Form (SF) 88 (Report of Medical Examination).

	c.  Headquarters, Camp Kilmer, New Brunswick, New Jersey, Letter Orders Number 6-42 dated 15 June 1953.

	d.  Headquarters, Camp Kilmer, New Brunswick, New Jersey, Letter Orders Number 179 dated 29 July 1953.

	e.  Headquarters, Army Personnel Center, Camp Kilmer, Medical Doctor Certification.

	f.  DA Form 188 (Extract Copy of Morning Report).

	g.  Record of Previous Convictions.

	h.  Report of immediate commanding officer requesting board action.

	i.  Meeting of Board Officers memorandum dated 6 August 1952.

	j.  Substance of Testimony.

	k.  DA Form 37 (Report of Proceedings of Board of Officers).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 August 1953, the date of his discharge.  The application submitted in this case was received on 22 March 2007.
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 records are not available for review and the facts and circumstances of the applicant's discharge are not available for review with this case.  The applicant’s military personnel records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The records available to the Army Board for Correction of Military Records were provided in part by the applicant and from reconstructed records.  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's DD Form 214 shows that he was born on 24 December 1930 and entered the Army at the age of 20 on 24 July 1951 at Fort Lewis, Washington in the grade of private/pay grade E-1. 

5.  The applicant's service records reveal a disciplinary history of absence without leave (AWOL) and special courts-martial for violations of the Uniform Code of Military Justice (UCMJ).

	a.  On 10 March 1952, he was AWOL during the period on or about 30 October 1951 through on or about 29 January 1952.  The applicant was sentenced to confinement at hard labor for 6 months and forfeiture of $26 per month for 6 months.

	b.  On 10 October 1952, he was AWOL during the period on or about 2 September 1952 through on or about 12 September 1952.  the applicant was sentenced to extra duty for 45 days and forfeiture of $50.

	c.  On 21 April 1953, he was AWOL during the period on or about 19 November 1952 through on or about 9 April 1953.  The applicant was sentenced to reduction to the grade of private/pay grade E-1, confinement to hard labor for 6 months, and forfeiture of $28.00 for 6 months.

6.  The DA Form 188 shows that the applicant was dropped from the rolls (DFR) as a deserter on 9 April 1953 and was absent without leave (AWOL) during the period 19 November 1952 through 13 April 1953.  The DA Form 188 further shows that the applicant was tried and convicted on 21 April 1953 and sentenced to reduction to private/pay grade E-1, forfeiture of $28 per month for 6 months, and confined at hard labor for 6 months.

7.  Records show that on 10 June 1953, the applicant underwent a medical examination for the purpose of separation in accordance with Army Regulation 615-368 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge).

8.  Headquarters, Camp Kilmer, New Brunswick, New Jersey, Letter Orders Number 6-42, dated 15 June 1953, shows that the applicant's commander requested that a Board of Officers be convened under the provisions of Army Regulation 615-368 to determine whether or not the applicant should be discharged prior to expiration of his normal term of service.

9.  On 16 June 1953, a medical doctor, assigned to Headquarters, Army Personnel Center, Camp Kilmer, New Jersey issued a report of the applicant's mental examination stating that the applicant was mentally sound and recommended expeditious separation from the service with an undesirable discharge under the provisions of Army Regulation 615-368.

10.  On 27 July 1953, the applicant was ordered to appear before the Board of Officers under the provisions of Army Regulation 615-368 to determine whether or not he should be discharged prior to expiration of his normal term of service because of unfitness for military service.

11.  On 10 August 1953, the Board of Officers convened and charges were preferred against applicant.  The President of the Board of Officers advised him of his rights and the applicant did not desire counsel and declined making a statement.  The Board found that the applicant gives evidence of habits which render retention in the service undesirable and evidence of traits of character which render retention in the service undesirable. 

12.  On 29 July 1953, the convening authority approved the findings of the Board of Officers and the recommendation of the Board.  The convening authority found that the applicant's conduct during his current period gives evidence of habits and traits of character that rendered his retention in the service undesirable. 

13.  The convening authority ordered that the applicant be discharged from the service under the provisions of Army Regulation 615-368 on account of unfitness for service because of anti-social personality and habitual AWOL, which render his retention in the service as undesirable and that he be issued a WD AGO Form No. 256A, Discharge from the Army of the United States.  

14.  On 14 August 1953, the appropriate authority approved the applicant's discharge and on 22 August 1953, the applicant was discharged under the provisions of Army Regulation 615-638 and the DD Form 214 he was issued shows an undesirable discharge, 1 year and 7 days of active service, and 519 days lost time.

15,  Army Regulation 615-368, in effect at the time, provided for the discharge of personnel found to have habits or traits of character (except when discharge for physical or mental conditions is indicated) which serve to render their retention in the service undesirable or is disqualified for service, physically or in character, through his own misconduct.  This regulation provided, in pertinent part, that all persons discharged under the provisions of this regulation would be furnished a WD AGO Form No. 56 (Discharge from the Army of the United States (Blue)).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was almost 21 years old when he enlisted.  There is no indication he was any less mature than any other young Soldier who enlisted and successfully completed a term of enlistment. 

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations 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 available records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  Good post service conduct and/or post experience or maturity are not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.  There is insufficient basis and the applicant did not provide evidence to upgrade his discharge.  

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 August 1953; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 August 1956.  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

__jcr___  __rmn___  __djp___  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.



							Jeffrey C. Redmann
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070004115
SUFFIX

RECON

DATE BOARDED
20070809
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19530822
DISCHARGE AUTHORITY
AR 615-368
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.