IN THE CASE OF:	  

		BOARD DATE:	       4 AUGUST 2009

		DOCKET NUMBER:  AR20090004233 


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 bad conduct discharge be upgraded.

2.  The applicant states that his life changed greatly after his discharge.  He contends that he has worked hard to be a good father and citizen and that he raised 9 children.  He indicates that he does not want to die with a bad discharge on his record and that every day he regrets his actions as a kid in the service.

3.  The applicant provides two character reference letters 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 was born on 8 October 1929.  He enlisted in the Regular Army on 29 December 1948 for a period of 2 years and served as a wireman.

3.  On 16 September 1949, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 2 September 1949 to 4 September 1949.  He was sentenced to forfeit $25.00 of his pay for 1 month.  On 19 September 1949, the convening authority approved the sentence.

4.  On 16 November 1949, nonjudicial punishment was imposed against the applicant for a pass violation.  His punishment consisted of 7 days of restriction.

5.  On 7 April 1950, nonjudicial punishment was imposed against the applicant for missing bed check (two specifications).  His punishment consisted of restriction and extra duty.

6.  Records show the applicant appeared before a board of officers on 9 May 1950.  The board found that the applicant gave evidence of habits 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 25 May 1950, the officer exercising general court-martial jurisdiction approved the recommendation.

7.  On 1 June 1950, contrary to his pleas, the applicant was convicted by a general court-martial of taking and using a truck (property of U.S.) with the intent to deprive the said owner temporarily of his property; unlawfully operating a motor vehicle upon a public road while under the influence of liquor; and through neglect suffer a military vehicle (truck) to be damaged by collision.  He was sentenced to be discharged with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for 1 year.  On 20 August 1950, the convening authority approved the sentence.

8.  The action by the convening authority ordering the bad conduct discharge to be executed is not available.

9.  The applicant was discharged with a bad conduct discharge on 20 August 1950 as a result of court-martial under the provisions of General Court-Martial Order Number 147, Headquarters, 1st Cavalry Division, dated 20 August 1950.  He had served a total of 1 year, 4 months, 3 days of total active service with 111 days of lost time due to AWOL and confinement.

10.  In support of his claim, the applicant provided two character reference letters from friends.  They attest that the applicant is dependable, a dedicated father, that he is active in the community and his church, and an outstanding citizen.
11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  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.

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.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted.

2.  Good post service conduct alone is normally not a basis for upgrading a discharge.

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  The applicant's record of service included two nonjudicial punishments, one summary court-martial conviction, one general court-martial conviction and 111 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant upgrading his 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)                                         AR20090004233



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ABCMR Record of Proceedings (cont)                                         AR20090004233



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