IN THE CASE OF:	  

		BOARD DATE:	        5 February 2009

		DOCKET NUMBER:  AR20080014988 


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 honorable.

2.  The applicant states that it is his understanding that after an uncertain amount of time, a person's undesirable discharge can be upgraded to honorable. 

3.  The applicant provides no supporting documentation.

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.  On 13 October 1948, the applicant enlisted in the Regular Army for 3 years.   He successfully completed his initial training and was awarded military occupational specialty (MOS) 745 (Light Weapons Infantryman).  

3.  On 31 January 1949, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from on or about 23 January to
28 January 1949.  His sentence consisted of a forfeiture of $20.00 pay per month for 1 month and hard labor for 15 days.

4.  On 8 April 1949, the applicant deployed to Japan for duty with the
27th Infantry Regiment.

5.  On 3 January 1950, the applicant was convicted by summary court-martial of wrongfully being in an off-limits area.  His sentence consisted of reduction to the lowest enlisted pay grade, forfeiture of $50.00 pay per month for 1 month, and 
30 days confinement at hard labor (suspended).  On 9 January 1950, the suspended sentence to confinement was vacated.

6.  On 7 January 1950, the applicant was convicted by a summary court-martial of being AWOL during the hours of curfew on or about 4 January 1950.  His sentence consisted of a forfeiture of $50.00 pay per month for 1 month and confinement at hard labor for 1 month.

7.  On 11 February 1950, the applicant’s unit commander requested that the applicant be required to appear before a board of officers, convened under the provisions of Army Regulation 615-368 (Enlisted Personnel – Discharge – Unfitness), to determine if he should be discharged from the military prior to the expiration of his term of enlistment due to unfitness.  The commander stated that the applicant possessed habits and traits of character which rendered his retention in the military service as undesirable.  He was undependable, inefficient, and had demonstrated sexual misconduct to such an extent that he had incurred one case of venereal disease. 

8.  On 27 February 1950, a board of officers convened to determine if the applicant should be discharged early.  The applicant and his counsel were present.  The board found that the applicant gave evidence of his misconduct in the service by his record of three courts-martial; of sexual misconduct by having incurred one case of venereal disease; of being careless with his clothing and equipment by having lost through neglect a large amount of government property; and of showing no desire to improve himself after numerous attempts 

were made to make him a satisfactory Soldier.  The board recommended that the applicant be discharged due to unfitness and that he receive an Undesirable Discharge Certificate.  

9.  On 7 March 1950, the appropriate authority approved the board's recommendation.    On 10 May 1950, the applicant was discharged accordingly.  He had completed 1 year, 4 months, and 21 days of creditable active duty service.

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

11.  Army Regulation 615-368, then in effect, set forth the policy and procedures for the separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, habitual shirking, and repeated venereal infections.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), governs the policies and procedures for the separation of enlisted personnel.  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.  

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 contends that after an uncertain amount of time, his undesirable discharge can be upgraded to honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  

3.  There is no evidence of record, nor has the applicant provided sufficient evidence to support an upgrade of his discharge.  

4.  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 a general or an honorable discharge.

5.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

6.  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.

7.  In view of the above, the applicant's request should be denied.

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.



      __________X____________
               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)                                         AR20080014988



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ABCMR Record of Proceedings (cont)                                         AR20080014988



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