IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080004539 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge.

2.  The applicant states in effect, that he has matured since his discharge and continued to seek self-improvement. 

3.  The applicant provided the following documentary evidence in support of his application:  

	a.  Undated self-authored statement.

	b.  Undated letter of Support from a Veterans Service Advocate. 

	c.  Miscellaneous Certificates of training, achievement, completion, awards, appreciation, and participation, dated on various dates.   

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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that the applicant enlisted in the Regular Army for a period of 3 years on 6 March 1956 in the rank/grade of private (PVT)/E-1 and that he was trained at Fort Dix, New Jersey, in military occupational specialty (MOS) 296.10 (Field Radar Repairman).

3.  The DD Form 214 further shows that he was assigned to Headquarters Battery, 42nd Field Artillery Group in Germany.  The Headquarters Battery provided the command structure for the 280mm artillery battalions that subsequently arrived in Germany and were assigned to Seventh Army.

4.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the applicant's DD Form 214 shows he was discharged on 15 August 1958 in accordance with Army Regulation   615-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge), for unfitness, in pay grade E-1.  He was furnished an Under Other Than Honorable Conditions Discharge.  He completed 2 years, 3 months, and 29 days of military service during this period of enlistment.  Item 38 (Remarks) of the DD Form 214 shows the entry, "42 days lost under Sec 6A App 2B MCM 1951."

5.  Item 11c (Reason and Authority) of the applicant's DD Form 214 contains the entry SPN 387 (Separation Program Number).  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that the SPN code 387 was authorized for separations under the provisions of Army Regulation 635-208 with the following associated narrative reason:  "Habits and Traits-Misconduct."

6.  In his undated self-authored statement, the applicant stated that during his service in Germany, he attended a group party at the Enlisted Club one night and became too intoxicated, abusive, and violent.  He was escorted out of the club.  However, he grabbed a steel pike, returned to the club, and directed it towards an unknown individual.  This action led to his subsequent ejection from the club.  He further adds that, although there was no serous injury, the intent to hurt someone was there.  He concludes that he regretted his behavior and has recognized his immaturity.



7.  In an undated letter of support from a Veterans Service Advocate, the author stated that the applicant was intoxicated one night during his service in Germany and did something that he later regretted.  However, he had matured since and has been active in veteran issues among his peers.  

8.  The applicant submitted several certificates of training, achievement, completion, awards, appreciation, and participation, dated on various dates, to show he has matured, became a responsible person, and continued to seek self-improvement. 

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

10.  Section 6a of Appendix 2b of the Manual of Courts-Martial, dated 31 May 1951, states that every Soldier who in an existing or subsequent enlistment deserts the service of the United States, or without authority absents himself from his organization, station, or duty for more than one day, or who is confined for more than one day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction, or through the intemperate use of drugs or alcoholic liquor, for more than one day to perform duty, shall be liable to serve, after his return to a full duty status, for such period as shall, with the time he may have served prior to such desertion, unauthorized absence, confinement, or inability to perform duty, amount to the full term of that enlistment period which is required to serve with his organization before being transferred to the Army reserve. 

11.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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's post-service certificates of achievements, appreciation, and training, as well as his character reference letter, were noted.  However, they are not sufficiently mitigating to grant the requested relief.  

2.  The applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army.  However, the applicant’s record contains a copy of his DD Form 214.  This document listed his authority for his separation was his misconduct.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



								XXX
      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004539



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ABCMR Record of Proceedings (cont)                                         AR20080004539



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