RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 September 2007
	DOCKET NUMBER:  AR20070006021 


	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. Thomas A. Pagan

Chairperson

Mr. Eric N. Andersen

Member

Mr. Paul M. Smith

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 a general discharge. 

2.  The applicant states, in effect, fifty years ago he was an irrational stupid boy with an alcohol problem and he did not care about anything.  He went absent without leave (AWOL) several times, got drunk, started fights, and spent time in the stockade.  

3.  He further states that he went before a discharge board and that his commander offered him a chance to stay in the military and complete his term of service.  "In my stupidity I chose to take the general – not realizing that the wording would say other than honorable condition."  He is now 70 years of age, on Medicare, and would like to have his discharge changed for medical and prescription purposes.  The last 25 years of his life have been a blessing.  He has been in Alcoholics Anonymous with 14 years of continuous sobriety. 

4.  The applicant provides no documentation in support of this application.

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 was born on 26 November 1936.  He enlisted in the Regular Army on 6 January 1955 and successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 321.10 (Lineman).  

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 8 July 1955 for failure to obey a direct order from a Noncommissioned Officer (NCO).
4.  On 9 March 1956, the applicant was convicted, pursuant to his pleas, by a special court-martial for being AWOL during the periods 29 November 1955 through 1 December 1955, 26 December 1955 through 29 December 1955, and 
3 January 1956 through 22 February 1956.  His sentence consisted of a forfeiture of $50.00 pay per month for six months and confinement at hard labor for six months.

5.  The applicant's record also shows that he was AWOL for the period 4 June 
1956 through 6 June 1956.

6.  On 7 December 1956, the applicant was convicted, pursuant to his pleas, by a summary court-martial for disobeying a lawful order from a superior commissioned officer.  His sentence consisted of a forfeiture of $57.00 pay for one month.

7.  On 27 May 1957, 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 habitual AWOLs, his demonstrated maladjustment to military service as evidenced by his inability to conform to discipline or adjust to control, and for receiving two court-martial convictions.

8.  On 28 May 1957, 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.  

9.  On 3 June 1957, the applicant was advised by his company commander of his rights and the effect of a waiver of those rights.  The applicant was also advised of the basis for his separation under the provisions of Army Regulation 635-208.  The applicant requested counsel and requested to be heard by a board of officers.  His record does not show he provided a statement in his own behalf.

10.  A DA Form 37 (Report of Proceedings of Board of Officers) shows a board of officers was held on 11 June 1957 and the board of officers recommended the applicant be eliminated from the U.S. Army by reason of unfitness.  

11.  The applicant's DD Form 214 is not available.  On 13 June 1957, the convening authority approved the recommendation to administratively separate the applicant and directed he receive an undesirable discharge under the 

provisions of Army Regulation 635-208 for unfitness.  On 20 June 1957, he was separated after completing 1 year, 11 months, and 26 days of creditable active service and had 169 days of lost time due to AWOL and confinement.

12.  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.

13.  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.  The applicant requests that his undesirable discharge be upgraded to a general under honorable conditions discharge.  However, his record shows that he was convicted by a summary court-martial and a special court-martial, received an Article 15 and had four instances of AWOL during his military service.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of a general discharge.

2.  The applicant contends that he was young and immature at the time.  Records show that the applicant was age 18 at the time his active service began and age 20 at the time of his discharge.  After his Article 15, he knew there would be consequences for his actions.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline.

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

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TAP  __  __ENA  _  ___PMS_  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.




    ___Thomas A. Pagan__
          CHAIRPERSON




INDEX

CASE ID
AR20070006021
SUFFIX

RECON

DATE BOARDED
13 SEPTEMBER 2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.7900.0000
2.

3.

4.

5.

6.