RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  07 February 2008
	DOCKET NUMBER:  AR20070011860 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

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, in effect, to have his general discharge upgraded to an honorable discharge.

2.  The applicant states, in effect, that his former wife wrote bad checks and he was blamed for it.  He already served time for his former wife's error, so he would like to have his records corrected to show he had nothing to do with it.

3.  The applicant provides a copy of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 military service records show that he was inducted into the Army of the United States on 1 February 1943 and entered active duty on  
8 February 1943.  He had completed all the necessary training and was awarded the military occupational specialty (MOS) 824 (Mess Sergeant).  He was honorably discharged for the convenience of the government "RR1-1" Demobilization on 15 March 1946.  He had served 2 years, 2 months, and  
15 days of active service.

3.  He immediately enlisted into the Regular Army on 16 March 1946 and served continuously until he was honorably discharged from active duty on 4 December 1953.  He had served a total of 10 years, 10 months, and 3 days of active service.  His highest grade held was sergeant first class (SFC (T)).

4.  He enlisted into the Regular Army in the grade of SFC (E-6) on 15 January 1954.

5.  On 22 January 1959, the applicant was convicted by a general court-martial of seven specifications of larceny by check for a total amount of $140.00; one specification of uttering a worthless check in amount of $40.00 with the intent to deceive; and one specification of being absent without leave (AWOL) for the period 2 August to 28 August 1958.  His sentence consisted of a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year.  The dishonorable discharge was suspended until the completion of appellate review or until release from confinement whichever was later.

6.  On 12 March 1959, the United States Army Board of Review found the approved findings of guilty and the sentence correct in law and fact and determined, on the basis of the entire record and after reassessing the sentence, that such finding of guilty and only so much of the sentence as provides for a bad conduct discharge (suspended), total forfeitures, and confinement at hard labor for one year was appropriate and should be approved.  Such findings and the sentence as thus modified were then affirmed and duly executed.

7.  On 16 March 1959, the applicant applied for restoration.  On 17 March  
1959, a Classification Board convened at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, to review the applicant's case for restoration, clemency, and parole.  The Board recommended restoration to duty or parole if restoration was denied.  The recommendations were in light of the applicant's 15 years of successful military duty and his desire to continue serving. The Board's recommendation to restore the applicant to active duty in the grade of E-6 was approved.  Thereafter, the applicant was assigned to duty as a Cook at the "Mess Hall" for the duration of his service.  

8.  Soon after his reassignment, his new commander reduced the applicant to  
E-1 for the same misconduct for which he had been court-martialed.  The applicant was then considered for elimination from the military service under the provision of Army Regulation 635-208 (Personnel Separation).  The commander based his decision to reduce and then discharge on the consideration of the sentence and the obvious negative effect on morale, discipline and efficiency of the members of the command of having a convicted Soldier serving as an noncommissioned officer (NCO).

9.  On 20 February 1960, the applicant was given a General Discharge Certificate for character and behavior disorders.  He had completed a total of  
15 years, 10 months, and 7 days of active service and had accrued 26 days time lost.

10.  The applicant applied to the Army Discharge Review Board (ADRB) on 
23 January 1961.  On 24 May 1961, the ADRB reviewed the applicant's record and determined that his discharge was proper and equitable and denied relief.

11.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

12.  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 (emphasis added), 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.

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 his general discharge be upgraded to an honorable discharge.

2.  The evidence of records show that the applicant was court-martialed and had served his sentence as approved and affirmed and duly executed.  While the applicant was confined at the United States Disciplinary Barracks the Board recommended restoration to duty which was then approved to restore the applicant to active duty in the grade of E-6.

3.  Upon returning to duty for his duration of service the applicant's commander reduced the applicant to private E-1 and considered him for elimination from the military under the provisions of Army Regulation 635-208.  The commander based his decision on the consideration of the sentence and the obvious effect on morale, discipline and efficiency on the members of the command.  As a result, the applicant was given a general discharge.

4.  There is no evidence that shows the applicant had committed any additional misconduct after returning to duty to redeem himself.  The applicant had already been court-martialed and sentenced and was restored to duty for a second chance to prove himself.  Given the opportunity to remain until his expiration term of service, it is reasonable to determine that the applicant would have received an honorable discharge.  Therefore, it is in the interest of fairness that the applicant’s records be corrected to show he received an honorable characterization of service.  Additionally, the reason and authority for the discharge was appropriate at the time and is considered appropriate today.

BOARD VOTE:

__WDP__  __RML__  __QAS__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant’s characterization of service as honorable.



____William D. Powers_____
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080207
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.