RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 December 2007
	DOCKET NUMBER:  AR20070009864 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. John G. Heck

Member

Mr. Qawiy A. Sabree

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 or a general discharge based on an extreme family hardship and the inequity of his discharge.

2.  The applicant states, in effect, that his punishment was extreme considering the nature of his offenses.

3.  The applicant provides in support of his application a self authored letter dated 27 June 2007, providing details of the events that took place while he was in the Army; his current medical conditions; and his post service accomplishments.  He requests forgiveness for the actions of his youth; and that his undesirable discharge be upgraded to an honorable discharge.  He also submits a letter from his pastor dated 27 May 2007, addressed to a Veterans Service Officer; a letter from the President, Meals on Wheels Board of Directors dated 6 June 2007; a letter from the associate pastor of his church dated 21 May 2007; and a letter from an associate dated 29 June 2007, all attesting to his good character and post service conduct.

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.  On 4 June 1954, the applicant enlisted in the Army in pay grade of E-1 and he went on to successfully complete his training as a light weapons infantryman.





3.  The applicant was convicted by a summary court-martial on 27 September 1954, of failure to appear at his appointed place of duty.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay in the amount of $50.00.  Only so much of the sentence as provided for confinement and a forfeiture of pay in the amount of $13.00 was approved.  The excess of that portion as provided for confinement at hard labor was suspended for 4 months.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 2 March 1955, for failure to repair for reveille formation.  His punishment consisted of 
extra duty for 7 days.

5.  After completing 10 months and 15 days of net active service, the applicant reenlisted in the Army on 19 April 1955, for a period of 3 years, in the pay grade of E-3.

6.  On 2 June 1955, NJP was imposed against the applicant for being drunk and disorderly.  His punishment consisted of restriction for 14 days.

7.  On 20 June 1955, NJP was imposed against him for failure to repair for duty.  His punishment consisted of a reduction to the pay grade of E-2 and restriction for 14 days.

8.  The applicant was convicted by a special court-martial on 29 July 1955, of being absent without leave (AWOL) from 5 July 1955 until 17 July 1955, without proper authority.  He was sentenced to confinement at hard labor for 3 months, a reduction to the pay grade of E-1 and a forfeiture of pay in the amount of $50.00 per month for 3 months.

9.  On 3 September 1955, NJP was imposed against him for failure to repair for bed check.  His punishment consisted of restriction for 14 days.

10.  The applicant had NJP imposed against him again on 16 September 1955, for failure to repair to sign in while on restriction.  His punishment consisted of restriction for 7 days.

11.  On 10 October 1955, NJP was imposed against him for failure to repair for bed check.  His punishment consisted of restriction for 14 days.





12.  A board of officers convened on 9 January 1956 to determine the applicant's fitness for retention in the Army.  The board found that the applicant gave evidence of unfitness which would render his retention in the service undesirable. The board noted that the applicant showed himself to be contemptuous of authority, chronically AWOL and a habitual shirker of duty.  The board further noted that he repeatedly committed offenses warranting courts-martial and NJP; and that further attempts to rehabilitate him would prove unsuccessful.  The board recommended that the applicant be discharged from the service under the provisions of Army Regulation 615-368, for unfitness and that he be furnished an Undesirable Discharge Certificate.

13.  The appropriate authority approved the recommendation for discharge on 12 January 1956.  Accordingly, on 24 January 1956, the applicant was discharged under the provisions of Army Regulation 615-368, for unfitness, based on habits and traits of character which rendered his retention in the service undesirable.  He had completed approximately 1 year, 7 months and 21 days of net active service and he had approximately 70 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

14.  On 20 August 1956 and on 27 August 1974, the Army Discharge Review Board denied the applicant's requests for an upgrade of his discharge.

15.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of undesirable habits and traits of character manifested by misconduct.  An undesirable discharge was normally considered appropriate.

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 discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contention that he was young and immature at the time, along with the letters that he has submitted in support of his application have been noted.  While he is commended on his good character and post-service

conduct, neither of these factors, either individually or in sum, is sufficiently mitigating to warrant the relief requested.

4.  The evidence of record shows that the applicant was convicted by a special court-martial and he NJP imposed against him on four separate occasions as a result of his acts of indiscipline.  These incidents occurred after he reenlisted in the Army on 19 April 1955.  He was provided every opportunity to become a disciplined Soldier while he was in the Army and he opted not to do so.  In view of his numerous acts of indiscipline, it does not appear that the type of discharge that he received or that the punishments imposed against him were too extreme. 

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

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __JCR___  __JGH__  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.





__Jeffrey C. Redmann__
          CHAIRPERSON


INDEX

CASE ID
AR20070009864
SUFFIX

RECON

DATE BOARDED
20071213
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATIVE DISCHARGE
2.  583
144.5000/UNFITNESS
3.  731
144.7900/UNDESIRABLE HABITS & TRAITS
4.

5.

6.