BOARD DATE:	  16 July 2009 

		DOCKET NUMBER:  AR20090001542 


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 an upgrade of his undesirable discharge (UD) to an honorable discharge (HD).

2.  The applicant states that in early 1953 he was a 19 year old veteran of the Korean conflict with an outstanding combat record, having served his country well.  When he arrived at Camp Chaffee (Arkansas) he ran into problems with authority, being told to do what he considered at the time menial and trivial tasks. It didn't set well with him after having gone through life and death situations on the battlefield in Korea.  He was then deemed to be insubordinate and spent some time in the stockade for his indiscretions.  After being released from the stockade he spoke with his commander who basically thought he could still be good Army material.  However, he had already made up his mind and requested immediate discharge.  Since then he has turned his life around and has become a better person and citizen and believes that he deserves consideration for his discharge upgrade.

3.  The applicant provides four letters showing his character and conduct in support of his request.

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 records show that he enlisted in the Regular Army (RA) on 
24 January 1951.  Upon completion of his required training he was awarded military occupational specialty (MOS) 1824 (Cook).

3.  The applicant's records show that the highest rank/grade he held on active duty was sergeant (SGT)/E-5.  

4.  On 11 August 1952, the applicant was tried and convicted by a special court- martial for being absent without leave (AWOL) from 14 to 21 July 1952 and for willfully disobeying a lawful order from his superior noncommissioned officer.  He was sentenced to confinement at hard labor for a period of 6 months and a forfeiture of $30.00 pay per month for 6 months.  On 13 August 1952, the court-martial convening authority approved the sentence and ordered it to be duly executed.

5.  On 26 January 1953, the applicant was convicted by a summary court-martial of being AWOL from 23 to 25 January 1953.  He was sentenced to confinement at hard labor for 24 days and a forfeiture of $15.00 pay.  On the same day, the court-martial convening authority approved the sentence and ordered it to be duly executed.

6.  On 9 February 1953, by request of his commander, the applicant was examined by the Psychiatry and Neurology Service of the U.S. Army Hospital, Camp Chaffee, to determine fitness for retention in the service.  The examining physician determined that the applicant was, at the time, mentally responsible both to distinguish right from wrong and adhere to the right.  He also determined that there was no disqualifying mental or physical defect sufficient to warrant separation under Army Regulation 600-450 (Personnel - Separation for Physical Disability).  The applicant’s condition was not amenable to hospitalization, treatment, disciplinary action, training, transfer to another station or organization, or reclassification to another type of duty.  It was recommended that the applicant continue on duty until command action was reached as to whether or not he should be retained in the service.  Should the command deem his performance to be useless to the service the applicant was to be separated from the military service under the provisions of Army Regulation 615-368 (Enlisted Personnel - Discharge - Unfitness), by reason of unfitness.

7.  The applicant's unit commander notified him that a board of appointed    officers would meet on 18 March 1953 to determine whether or not he should      be discharged from the service under the provisions of Army Regulation           615-368/Army Regulation 615-369, by reason of unsuitability.  The applicant acknowledged the notification and he declined to have additional witnesses and to have counsel present for this board.

8.  On 23 March 1953, the board of officers found the applicant's service undesirable and he was recommended for separation under the provisions of Army Regulation 615-368 for unfitness.  It was also recommended that he be issued a DD Form 258A (Undesirable Discharge Certificate). 

9.  On 31 March 1953, the applicant was discharged from active duty, in the rank/grade of private (PV1)/E-1, with his service characterized as undesirable, under the provisions of Army Regulation 615-368 for unfitness.  The applicant was credited with 1 year, 7 months, and 10 days of active military service.  He had 207 days of lost time due to AWOL and confinement.

10.  The applicant provides four character reference statements from friends and business associates who generally state that the applicant has been a loyal, hardworking, and trustworthy employee as well as a very business-oriented person and a sincere friend.  

11.  Army Regulation 615-368 (Enlisted Men – Discharge), then in effect, set forth the policy for the separation of enlisted personnel for unfitness.  Paragraph 1 of the regulation provided, in pertinent part, that individuals would be discharged by reason of unfitness when 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.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

12.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded was carefully considered and determined to be insufficient in merit.

2.  The evidence shows that the applicant was AWOL and confined on several occasions for a combined total of 207 days.  

3.  The character reference letters submitted by the applicant were considered; however, there is no substantial evidence to support a change in the actions by the command concerning his discharge.  Based on the evidence provided, the actions of the command were conducted in accordance with applicable law and regulations at the time.

4.  Based on the findings of the board of officers which convened on 18 March 1953 and the available evidence of record, the applicant did not meet the standards of acceptable conduct and performance for an honorable or general discharge.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, he is not entitled to the relief requested.   

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)                                         AR20090001542



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ABCMR Record of Proceedings (cont)                                         AR20090001542



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