IN THE CASE OF:	  

		BOARD DATE:	        03 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080006925 


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, in effect, that his undesirable discharge be upgraded to a general discharge. 

2.  The applicant states, in effect, that he was given an undesirable discharge for not signing in every hour on the hour and was charged with being absent without leave (AWOL) when he signed in late.  He also states that his sergeant told him that if he wanted out of the Army, all he had to do was sign the paper.  He goes on to state that he could not read well then and was unaware of the discharge he was receiving.  He also states that it was unjust to discharge him and contends that it was the result of racial discrimination at the time.  However, he was unaware that he could apply for an upgrade of his discharge until 1989.  

3.  The applicant provides no additional documents with 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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant was born on 16 January 1939 and enlisted in the California Army National Guard (CAARNG) on 3 June 1956.  He was ordered to active duty for training (ACDUTRA) at Fort Ord, California on 31 August 1956.  He completed his training as a heavy weapons infantryman and was honorably released from ACDUTRA on 28 February 1957 and was transferred back to his CAARNG unit.   

4.  On 13 May 1957, he was inducted into the Army of the United States (AUS) and was transferred to Korea.  

5.  On 26 October 1957, he was convicted by a summary court-martial of being absent from his place of duty and of being in an off-limits area.  He was sentenced to hard labor without confinement for 30 days, reduction to the pay grade of E-1, and a forfeiture of pay.

6.  On 23 May 1958, he was convicted by a general court-martial of sleeping on his post.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  The applicant was subsequently transferred to Fort Ord.  

7.  On 20 February 1959, he was convicted by a summary court-martial of being derelict in the performance of his duties.  He was sentenced to a forfeiture of pay and restriction.

8.  On 26 February 1959, he was convicted by a summary court-martial of being absent without authority from 21 February to 24 February 1959.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay.

9.  All of the facts and circumstances surrounding his discharge are not present in the available records.  However, his records do show that on 17 March 1959, the applicant appeared before a board of officers to determine if he should be separated from the service due to his habits or traits of character manifested by 
misconduct.  The board of officers determined that he should be discharged from the service under the provisions of Army Regulation 635-208 for unfitness due to his undesirable habits or traits of character manifested by misconduct and recommended that he be furnished an Undesirable Discharge Certificate.  The findings and recommendations were approved by the appropriate authority on 17 March 1959.

10.  Accordingly, on 23 March 1959, the applicant was discharged with an undesirable discharge, characterized as under other than honorable conditions, under the provisions of Army Regulation 635-208 for unfitness, due to habits or traits of character manifested by misconduct.  He had served 1 year, 2 months, and 7 days of active service during his current period of enlistment and 1 year,
8 months and 5 days of total active service.  He had 247 days of lost time due to AWOL and confinement.

11.  In May 1973, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He cited at that he was young and uneducated at the time he committed the offenses that led to his discharge and contended that he would do whatever was necessary to get his discharge upgraded because he was sorry for what he had done.  The ADRB determined that his discharge was both proper and equitable and on 21 October 1974, denied his request.

12.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals exhibiting habits or traits of character manifested by misconduct or being involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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 violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, given his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.
 
4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the 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)                                         AR20080006925



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ABCMR Record of Proceedings (cont)                                         AR20080006925



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