IN THE CASE OF:	  

		BOARD DATE:	       15 October 2008

		DOCKET NUMBER:  AR20080011763 


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 that his undesirable discharge be upgraded to honorable. 

2.  The applicant states, in effect, that when he was discharged he was told he would receive his benefits (i.e. Department of Veterans Affairs (DVA)).  He contends that he was lied to and he believes it was racially motivated. 

3.  In a letter, dated 8 July 2008, the applicant’s daughter inquires about his pension benefits.  She states that according to the applicant’s DD Forms 214 he served 4 years and 10 months in the Army, and she indicates that they have no information on the applicant’s undesirable discharge.  She points out the applicant’s honorable service and his awards and decorations, which he earned during the Korean War.  She also points out that the type is different on the entry, “Unfitness Gives evidence of Habits and traits of character which render retention in Service Undesirable.” in item 38 (Remarks) on the applicant’s DD Form 214 for the period ending 27 July 1954.  

4.  The applicant provides a letter, dated 8 July 2008, from his daughter and DD Forms 214 (Report of Separation from the Armed Forces of the United States) for the periods ending 16 December 1951 and 27 July 1954. 

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 was inducted on 24 November 1950.  He was honorably discharged on 16 December 1951 for immediate enlistment in the Regular Army. 

3.  The applicant’s DD Form 214 for the period ending 16 December 1951 shows that he completed 1 year and 22 days of creditable service. 

4.  The applicant enlisted on 17 December 1951 for a period of 6 years.  

5.  On 20 May 1952, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 16 April 1952 to 7 May 1952.  He was sentenced to be restricted to the limits of the company area for 15 days and to forfeit $36.00 pay.  On 20 May 1952, the convening authority approved the sentence. 

6.  On 24 June 1952, contrary to his pleas, the applicant was convicted by a special court-martial of willfully and unlawfully obliterating certain figures from his military pay record for the purpose of obtaining money fraudulently from the U.S. Government.  He was sentenced to be confined at hard labor for 6 months and to forfeit $25.00 pay per month for 6 months.  On 2 July 1952, the convening authority approved the sentence.  On 18 August 1952, the unexecuted sentence to confinement was remitted effective 19 August 1952. 

7.  The applicant arrived in Korea on approximately 9 September 1952.

8.  On 23 December 1952, the applicant was convicted by a summary court-martial of failing to obey a lawful order.  He was sentenced to forfeit $28.00 pay and to perform hard labor without confinement for 45 days.  On 23 December 1952, the convening authority approved the sentence. 

9.  On 15 May 1953, the applicant was convicted by a summary court-martial of speeding (driving a 2 1/2 ton truck at a speed of 35 miles per hour in a lawfully posted 20 miles per hour zone).  He was sentenced to forfeit $30.00 pay and to be reduced to E-1.  On 16 May 1953, the convening authority approved the sentence. 

10.  On 3 November 1953, contrary to his pleas, the applicant was convicted by a special court-martial of going from his appointed place of duty without authority and wrongfully appropriating a truck.  He was sentenced to be confined at hard labor for 6 months and to forfeit $30.00 pay per month for 6 months.  On 
21 November 1953, the convening authority approved only so much of the sentence as provided for a forfeiture of $30.00 pay per month for 6 months and to be confined at hard labor for 4 months. 

11.  The applicant departed Korea on approximately 2 March 1954. 

12.  On 24 May 1954, contrary to his plea, the applicant was convicted by a special court-martial of being AWOL from 10 May 1954 to 18 May 1954.  He was sentenced to be confined at hard labor for 3 months and to forfeit $30.00 pay per month for 3 months.  On 24 May 1954, the convening authority approved the sentence.  On 21 July 1954, the unexecuted portion of the sentence to confinement was suspended. 

13.  On 1 June 1954, the applicant underwent a psychiatric examination, and the psychiatrist found no mental disease which rendered him irresponsible for his behavior.  

14.  On 1 June 1954, the applicant’s unit commander recommended that a board of officers be convened to determine if the applicant should be retained on active duty.  He cited that the applicant had a record of three special courts-martial and three summary courts-martial with the last 2 1/2 years.

15.  The applicant appeared before a board of officers on 16 June 1954.  The board found that the applicant “gives evidence of habits” and “gives evidence of traits of character” which rendered retention in the service undesirable and recommended that the applicant be discharged from the service because of unfitness and that he be furnished an undesirable discharge.  On 13 July 1954, the officer exercising general court-martial jurisdiction approved the recommendation. 

16.  The applicant was discharged on 27 July 1954 with an undesirable discharge under the provisions of Army Regulation 615-368 for unfitness.  He had served a total of 3 years, 3 months, and 9 days of creditable active service with 144 days of lost time due to being AWOL and in confinement.  

17.  The applicant’s DD Form 214 for period ending 27 July 1954 shows that he served 2 years, 2 months, and 17 days during that enlistment and that he served a total of 3 years, 3 months, and 9 days of creditable service.  Item 8 (Reason and Authority for Separation) on this DD Form 214 shows the entry, “AR [Army Regulation] 615-368 Item 38.”  Item 38 on this DD Form 214 shows, in pertinent part, the entry, “Unfitness Gives evidence of Habits and traits of character which render retention in Service Undesirable.”  This DD Form 214 also shows the Korean Service Medal with three bronze service stars, the United Nations Service Medal, and the National Defense Service Medal as authorized awards.    

18.  On 6 February 1956, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.

19.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided, in pertinent part, for the separation of personnel for the following reasons:  (1) gives evidence of habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct; (2) unclean habits; 
(3) repeatedly committed petty offenses not warranting trial by court-martial; 
(4) habitual shirker; or (5) recommended for discharge by a board of medical examiners, not because of a physical or mental disability, but because he possessed a psychopathic (antisocial) personality disorder or defect, or was classified as having “no disease” by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, and/or it is clearly evident his complaints were unfounded and were made with the intent of avoiding service.  The regulation also provided that when discharged because of unfitness an undesirable discharge will be furnished.   

20.  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.  

21.  Army Regulation 635-200, paragraph 3-7, 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.
22.  Army Regulation 635-200, chapter 12 sets the policies and procedures for voluntary retirement of Soldiers because of length of service.  In pertinent part, it states that a Soldier who has completed 20 years active federal service and who has completed all required service obligations is eligible to retire.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention pertaining to DVA benefits was noted.  However, the DVA does not fall under the purview of this Board or the Department of Defense.  

2.  Evidence of record shows the applicant completed 3 years, 3 months, and 
9 days of creditable active service when he was discharged.  There is no evidence of record which shows the applicant completed 20 years of active duty. Therefore, there is no basis for granting the applicant’s request for retired pay (i.e. a pension).   

3.  There is no evidence of record which shows that the applicant was a victim of discrimination.

4.  Although the applicant’s daughter contends that they have no information on the applicant’s undesirable discharge, evidence of record shows the applicant was present for the board of officers that convened on 16 June 1954.

5.  The applicant’s daughter’s contention pertaining to item 38 on his DD Form 214 for the period ending 24 July 1954 was noted.  However, since item 8 on this DD Form 214 indicates that the reason for separation would be entered in item 38, and the applicant was discharged for unfitness (gives evidence of habits and traits of character), the entry in item 38 is correct.  

6.  The applicant’s service in Korea and his service awards were noted. However, his record of service during his last enlistment also included three summary courts-martial, three special courts-martial convictions, and 144 days of lost time.  As a result, his record of service was not satisfactory and his record did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant’s record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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



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)                                         AR20080011763



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ABCMR Record of Proceedings (cont)                                         AR20080011763



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