IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080014635 


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 an honorable or a general discharge.

2.  The applicant states, in effect, that he was a demolition specialist at Schofield Barracks, Hawaii when he received a Red Cross letter stating that his mother was sick, and that the post chaplain assisted him in getting reassigned to Fort Campbell, Kentucky.  He also states, in effect, that his command removed him from a demolition position and put a non-demolition person in his place, and that he complained but was told that they did what they wanted to.  He further states that he then started getting harassed by his commanders, who would open and read his mail, among other things.  Additionally, he states that he asked to be reassigned, but was told that they were too short of men, and that as he felt there was nothing left for him to do, he went absent without leave (AWOL) for 
30 days, and that he came back to his unit of his 30th day of AWOL.  He then states that he served about 45 days of a 6-month sentence and returned to his unit, but still could not get a transfer.  He also states that he asked his battalion commander if he could be discharged so he could reenlist into another unit, and that his battalion commander told him that he could.  He states that he did get a discharge, but that it turned out to be under other honorable conditions, and that he was never given any indication that he would be given this type of discharge.  

3.  The applicant provides a continuation page to his application, his DD Form 214 (Report of Separation from the Armed Forces of the United States) for his active duty service from 16 March 1951 to 27 February 1954, and his DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) for his active duty service from 31 December 1957 to 17 August 1961 in support of this 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 show that after previously serving in the Regular Army from 16 March 1951 to 27 February 1954, he again enlisted in the Regular Army on 31 March 1955.  After receiving refresher training at Camp Chaffee, Arkansas, he was reassigned to Fort Leonard Wood, Missouri and further assigned to the 82nd Engineer Battalion.

3.  The applicant's DA Form 26 (Record of Court-Martial Conviction) shows that he was convicted by a summary court-martial on 11 July 1956 for going AWOL from 7 July 1956 until 9 July 1956.  He was sentenced to forfeiture of $40.00 and restriction to the company area for 15 days.  This document also shows that he was convicted by a second summary court-martial on 6 August 1956 for failing to go at the time prescribed to his appointed place of duty on 1 August 1956, violating a lawful general regulation by leaving a military reservation without a pass in his possession, and failing to sign out in the register.  He was sentenced to perform hard labor without confinement for 21 days.

4.  The applicant completed a tour of duty in Hawaii from 12 March 1958 to
26 May 1960, then was reassigned to Fort Campbell, Kentucky.  However, prior to departing Hawaii, he was reduced in rank and pay grade from specialist four (SP4)/E-4 to private first class (PFC)/E-3 effective 19 May 1960 due to misconduct.  

5.  The applicant's DA Form 24 (Service Record) shows, in pertinent part, that he was confined by civil authorities in Clarksville, Tennessee on 26 February 1961 for disorderly conduct.
6.  On 24 April 1961, the applicant was convicted by a special court-martial for absenting himself without authority from his organization on or about 27 February 1961 and remaining so absent until on or about 0555 hours on 28 February 1961, and for absenting himself without authority from his organization on or about 0800 hours on 28 February 1961 and remaining so absent until on or about 11 April 1961.  He was sentenced to confinement at hard labor for 
6 months and forfeiture of $70.00 pay per month for 6 months.    

7.  On 17 May 1961, the applicant was evaluated by a psychiatrist, who found that the applicant was not psychotic or severely psychoneurotic, and that he had no disqualifying mental or physical defect sufficient to warrant disposition through medical channels.  This psychiatrist also found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and that he had sufficient mental capacity to understand the nature of any proceedings against him.  Additionally, this psychiatrist cleared him for any administrative action deemed appropriate by his command, and recommended that he appear before a board of officers convened under the provisions of Army Regulation 635-208 (Unfitness - Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) to consider his separation from the service.

8.  In a statement, dated 10 July 1961, the applicant acknowledged that he had been afforded the opportunity of requesting counsel, and that he had been counseled by his commanding officer and advised that he was recommending him for an undesirable discharge under the provisions of Army Regulation 
635-208.  The applicant also stated that he did not desire any counsel, waived his right to appear before a board of officers, and did not wish to submit any statements in his own behalf.  

9.  In two statements, both dated 14 July 1961, representatives from two separate financial lending companies stated that the applicant took out personal loans which he either failed to properly pay back or attempted to pay back with worthless checks.

10.  In a letter, dated 18 July 1961, the applicant's commanding officer requested that the applicant be discharged from the service with an undesirable discharge for frequent incidents of a discreditable nature with military authorities and an established pattern showing dishonorable failure to pay his just debts.  His commanding officer also essentially stated that although the applicant was entirely capable of performing his job, his laziness, lackadaisical and indifferent attitude, failure to obey orders, habitual absence without authority, reporting for duty while intoxicated, cashing bad checks, and failing to pay his financial obligations caused him to recommend the applicant's discharge.  He also stated, 
in effect, that the applicant had received more personal attention and fair breaks than any other member of his command, and that he was placed in a fireman job which enabled him to have an outside civilian job to assist him in liquidating his financial obligations.  However, he stated that the applicant would not only fail to show for his fireman shift work, he would spend the extra money he made in his side job on drinking.  He further stated that the applicant had been counseled by all levels of command on his excessive drinking habits, and that on many occasions, he reported for duty intoxicated.  Additionally, he essentially stated that the applicant was the worst Soldier in all respects that he had ever encountered, and that he should positively be eliminated from the service with an undesirable discharge under the provisions of Army Regulation 635-208.  

11.  On 7 August 1961, the proper separation authority approved the applicant's discharge under the provisions of Army Regulation 635-208, and directed that he be furnished a DD Form 258A (Undesirable Discharge Certificate).  

12.  On 9 August 1961, the unexecuted portion of the applicant's court-martial sentence to confinement at hard labor for 6 months and forfeiture of $70.00 pay per month for 6 months was remitted.

13.  In a statement, dated 15 August 1961, the applicant certified that he understood that he was being discharged under the provisions of Army Regulation 635-208 with an undesirable discharge.  On 17 August 1961, he was discharged accordingly.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities, sexual perversion, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a provides, in pertinent part, 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.  

17.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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 undesirable discharge should be upgraded to an honorable or a general discharge.  

2.  The applicant's contention that he received a Red Cross letter stating that his mother was sick, and that the post chaplain assisted him in getting reassigned to Fort Campbell, Kentucky was noted.  However, there is no evidence in his military records, and the applicant failed to provide any evidence to support this contention.  Even if true, it would not be justification for his offenses which led to his discharge.

3.  The applicant's contention that he only went AWOL for 30 days was not found to have merit.  The evidence of record clearly shows that he was AWOL for approximately 42 days, and that he did not return to his unit on his 30th day of his AWOL as he now claims.

4.  The applicant's contention that he was never given any indication that he would be given an undesirable discharge is without merit.  The applicant signed two statements prior to his discharge which clearly show that he was aware of the type of discharge he was facing as a result of being discharged under the provisions of Army Regulation 635-208.

5.  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 this requirement.

6.  There is no evidence which shows that the applicant's discharge proceedings were not in compliance with the applicable regulation in effect at the time.  The 
type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records also contain no indication of procedural or other errors that would tend to jeopardize the applicant's rights.

7.  The evidence of record shows that the applicant was court-martialed on three occasions for various offenses of the Uniform Code of Military Justice, and that he was apprehended by civil authorities for disorderly conduct.  It also shows that the applicant failed to pay his just debts, and that despite his chain of command's efforts to assist him, he failed to pay those debts and instead used money from a second job to finance his drinking habit.  As a result, he was properly and equitably discharged under the provisions of Army Regulation 635-208 for frequent incidents of a discreditable nature and failing to pay his just debts.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  __X______  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)                                         AR20080014635



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ABCMR Record of Proceedings (cont)                                         AR20080014635



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