IN THE CASE OF:	  

		BOARD DATE:	       5 May 2009

		DOCKET NUMBER:  AR20090001309 


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 general, under honorable conditions.

2.  The applicant states that he thinks his discharge was inequitable because it was based on one isolated incident and did not take into consideration his 11 months of excellent military service.

3.  The applicant provides no documentation in support of 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 for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request.

3.  On 22 October 1962, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his undesirable discharge.  The proceedings of that board show the following:

	a.  The applicant was discharged on 18 June 1953 under the provisions of Army Regulation 615-368 (Enlisted Personnel – Discharge – Unfitness) for unfitness.

	b.  The applicant was absent without leave (AWOL) on six occasions in 1953 for periods ranging from 2 to 10 days each.  He was confined for a period of 30 days from 25 April 1953 to 24 May 1953.

	c.  The applicant was convicted by five summary courts-martial for AWOL and for failure to go to his appointed place of duty.

	d.  On 26 May 1953, a board of officers convened to determine if the applicant should be discharged early for unfitness.  The applicant's commander had requested the board based on his unfitness as demonstrated by his anti-social tendencies, including an unwillingness to cooperate with others, to adapt himself to existing conditions, failure to obey and carry out orders, and to repeatedly commit minor offenses despite sufficient corrective and disciplinary action.  His character was rated as poor.  His efficiency was rated as unsatisfactory.  The applicant appeared before the board without counsel and elected to remain silent.  The applicant's supervisor testified that the applicant had never shown any interest in his assigned mission and had gone AWOL numerous times.  Another witness stated that he was a continuous problem and did not take care of his equipment and clothing and constantly suffered shortages.  The board recommended that he be discharged because of unfitness.

	e.  The ADRB determined that the applicant  was properly and equitably discharged and denied his request for an upgrade.

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 18 June 1953 is not available for review.  On 21 August, 2008, the applicant was issued an NA Form 13038 (Certification of Military Service) showing that he was a member of the Army of the United States from 8 July 1952 to 18 June 1953 and that he was terminated by an undesirable discharge in the rank of private.
5.  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, criminality, 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.

6.  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.

7.  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 inequitable because it was based on one isolated incident and did not take into consideration his 11 months of excellent military service.

2.  The available evidence shows that the applicant's administrative separation was accomplished after multiple instances of misconduct 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 the applicant's record of indiscipline, his 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.  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.  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)                                         AR20090001309



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ABCMR Record of Proceedings (cont)                                         AR20090001309



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