IN THE CASE OF:	  

		BOARD DATE:	       23 September 2008 

		DOCKET NUMBER:  AR20080008427 


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.

2.  The applicant states, in effect, that his discharge is unjust because it was given by a board of officers.  He further states that after being released from the stockade he was given an undesirable discharge and that the discharge was worse than the discharge he received in 1948, when he had not been incarcerated.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the ending period 3 May 1957; WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) with the period ending 7 January 1947; and a DA Form 37 (Report of Proceedings of Board of Officers), dated 15 April 1957. 

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, this case is being considered using reconstructed records, which primarily consist of his DD Form 214, a WD AGO Form 53-55, and a DA Form 37.

3.  The applicant had prior service.  He enlisted in the Regular Army on 
8 December 1955 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 110.10 (Light Weapons Infantryman).

4.  The applicant provided a DA Form 37 which shows a board of officers was held on 15 April 1957.  The board of officers recommended the applicant be discharged from the service because of undesirable habits or traits of character and that he be issued an undesirable discharge certificate.  

5.  The applicant's DD Form 214, with the period ending 3 May 1957, show that he was separated on 3 May 1957 under the provisions of Army Regulation 635-208 with a characterization of service of under other than honorable conditions by reason of unfitness.  The applicant completed 1 year, 2 months, and 26 days of creditable active service with 61days of lost time.

6.  Army Regulation 635-208, in effect at that time, 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 amoral 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.  At the time, an undesirable discharge was normally issued.

7.  Army Regulation 635-208, further stated that when an individual demonstrated that he was undesirable for retention in the military service, his commanding officer would report the facts to the next higher commander and recommend that the individual appear before a board of officers convened under the authority contained herein.  The board would recommend that the individual be: (1) discharged because of undesirable habits or traits of character, or (2) discharged because of unsuitability, or (3) retained in the service.  The convening authority would approve or disapprove the action recommended by the board or direct other appropriate disposition of the case.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  

9.  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 contends that his discharge was unjust because it was given by a board of officers.  However, evidence of record shows that he was recommended for administrative discharge by a board of officers in accordance with Army Regulation 635-208 and it appears the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge.  

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable discharge or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.




      _______ _xxxx______   ___
               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)                                         AR20080008427



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ABCMR Record of Proceedings (cont)                                         AR20080008427



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