RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20070006098 


	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. 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, in effect, an upgrade of his discharge.

2.  The applicant states, in effect, that he was young and immature when he joined the Army and that he did not understand the consequences of his actions at the time.  He further states that he served in excess of 2 years and believes he has already paid dearly for his mistakes.

3.  The applicant did not provide any documentation in support of his 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's records show that he was born on 29 July 1937 and enlisted in the Regular Army on 12 January 1955 at the age of 17 for a period of 3 years. Records further show that he was awarded military occupational specialty (MOS) 130.00 (Basic Armor Specialist).  

3.  The applicant's DD Form 493 (Extract of Military Records of Previous Convictions) shows that the applicant had the following previous convictions by courts-martial:

	a.  Headquarters, 1st Tank Battalion Summary Court-Martial Orders Number 1, dated 13 February 1956, for on or about 6 February 1956, unlawfully entering a restricted area.  He was sentenced to forfeiture of $50 pay, performance of hard labor for 30 days, and reduction to the lowest enlisted grade.

	b.  Headquarters, 14th Armored Cavalry, Special Court-Martial Orders Number 190, dated 27 December 1956, for on or about 19 December 1956, wrongly appropriating a military truck. He was sentenced to forfeiture of $50 pay per month for 3 months and performance of hard labor for 3 months.

	c.  Headquarters, 14th Armored Cavalry, Summary Court-Martial Orders Number 35, dated 24 January 1957, for being absent without leave (AWOL) during the period on 22 January 1957.  He was sentenced to forfeiture of $50 and confinement at hard labor for 30 days.

4.  Headquarters, 7th United States Army Special Orders 257, dated 10 December 1956 show that the separation authority ordered a Board of Officers to be appointed and meet at the call of its president for consideration and disposition of such cases as may be referred to it by this headquarters.

5.  On 13 February 1957, the applicant declined to have counsel in any future board action in which he would be a respondent.

6.  On 20 February 1957, the applicant underwent a medical and mental examination which found his mental condition as normal, his physical condition as good, and that he was free from mental defects as to be able to distinguish right from wrong.

7.  On 26 February 1957, the applicant's immediate commander requested the applicant appear before a board of officers to determine whether he should be separated for constantly committing offenses and lacking the ability to be rehabilitated.

8.  On 6 March 1957, the applicant was notified of hearing before a board of officers to determine whether he should be separated under the provisions of Army Regulation 635-208 (Personnel Separation) for repeated misconduct.  The applicant was advised of his rights but he declined having a counsel or calling any witnesses and waived his right to have a delay.

9.  On 11 March 1957, a board of officers convened under the provisions of Army Regulation 635-208.  The proceedings of the board of officers show that the applicant gave evidence of traits of character other than those indicating discharge for physical or mental conditions which rendered his service undesirable.  He was recommended for discharge from the service because of undesirable habits and traits of character.

10.  The applicant was separated on 13 April 1957.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows that he was discharged as a result of unfitness for further service under the provisions of Army Regulation 635-208.  This form further shows the applicant's character of service as "Under Other than Honorable Conditions" and that the applicant had 41 days of lost time during his military service. 

11.  On 21 May 1982, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  Army Regulation 635-208 (Personnel Separations), then in effect, 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 a moral 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.  When separation for unfitness was warranted, an undesirable discharge was normally issued

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's age and immaturity at the time of his enlistment was duly noted.  However, when he enlisted in the Army, the applicant chose to accept the responsibility of an adult. 

3.  After review of the applicant’s entire record of service, the conviction by two summary courts-martial and one special court-martial as well as the loss of time of 41 days and in view of the lack of evidence it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__pms___  __reb___  __rch___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





							Paul M. Smith
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070006098
SUFFIX

RECON

DATE BOARDED
20070828
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19570813
DISCHARGE AUTHORITY
AR 635-208
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.