IN THE CASE OF:	  

		BOARD DATE:	      9 JUNE 2009

		DOCKET NUMBER:  AR20090004357 


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 undesirable discharge be upgraded to an honorable or general discharge.

2.  The applicant states that he disobeyed a direct order to muster in Bermuda shorts, while stationed in Toule, France.  He goes on to state that he mustered in what had been advised as parade dress for the area he was in and feels that the order for change in muster dress was as inappropriate as his refusal to obey it.  He continues by stating that he was a young man at the time and made what may be considered a foolish decision, however, he has lived with it long enough.

3.  The applicant provides a letter explaining his application and his post-service accomplishments, a copy of his 23 May 1955 Honorable Discharge Certificate, a copy of a Certification of Military Service showing that he was honorably discharged on 23 May 1955, a copy of a Certification of Military Service reflecting his Undesirable Discharge on 8 November 1958, a Certificate of Training from the Seventh Army Noncommissioned Officer (NCO) Academy, a character reference from his former employer, 13 Certificates of course completions and a copy of his high school equivalency.

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 to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant was born on 2 September 1936 and enlisted in the Regular Army on 4 November 1952.  He served until he was honorably discharged in the rank of private first class on 23 May 1955, for the purpose of immediate reenlistment.  He reenlisted on 24 May 1955 for a period of 6 years and was transferred to Germany.  He remained in Germany until 15 March 1957 when he was transferred to Fort Polk, Louisiana.

4.  On 3 August 1957, he was convicted by a summary court-martial of failure to go to his place of duty.  He was sentenced to hard labor without confinement for 30 days, a forfeiture of pay and reduction to the pay grade of E-1.

5.  The applicant volunteered for overseas assignment and on 2 October 1957, he departed for assignment to an engineer battalion in France.

6.  On 1 June 1958, company punishment was imposed against him for missing bed check.  His punishment consisted of 7 days extra duty.  

7.  On 11 June 1958, he was convicted by a summary court-martial of willfully disobeying a lawful order of a superior NCO.  He was sentenced to a reduction to the pay grade of E-2 and restriction for 30 days.

8.  On 23 June 1958, he was convicted by a summary court-martial of breaking restriction and failure to go to his place of duty (reveille).  He was sentenced to hard labor for 30 days and a forfeiture of pay.

9.  On 28 June  1958, company punishment was imposed against him for misappropriating a government vehicle and drinking wine in the motor pool.  His punishment consisted of 14 days extra duty.
10.  The applicant underwent a mental status evaluation on 11 August 1958 and was determined to be mentally responsible, able to distinguish right from wrong, was alert and well-oriented, was able to cooperate in his own defense and that he had no mental defects that warranted disposition through medical channels.

11.  On 18 August 1958, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-208 due to undesirable habits and traits of character manifested by misconduct.

12.  The applicant appeared before an administrative separation board on 5 September 1958 and was represented by counsel.  The applicant's chain of command gave statements to the effect that the applicant had shown complete disregard for any punishment imposed, that he resented authority, that he had a poor attitude towards the Army, that his conduct was poor and that every time he had been in trouble he had taken two or three good men with him and most of them had never been in any trouble prior to associating with the applicant.  The applicant elected to remain silent.  The board of officers recommended that the applicant be discharged under other than honorable conditions and on 29 September 1958, the appropriate authority approved the findings and conclusions of the board.

13.  Accordingly, the applicant was discharged on 8 November 1958 at Fort Dix, New Jersey, under the provisions of Army Regulation 635-208 due to habits and traits of character manifested by misconduct.

14.  The applicant applied to the Army Discharge Review Board (ADRB) on 24 February 1959 for an upgrade of his discharge to honorable and contended at that time that his discharge was unjust and unfair because of his prior service record.  The applicant was granted a personal appearance before that board at the Pentagon on 23 April 1959 and was represented by counsel.  After reviewing all of the evidence and testimony in the case the ADRB determined that the applicant had been properly discharged and voted to deny his request on 18 May 1959.

15.  The applicant was granted a rehearing before the ADRB on 29 November 1962 and he was represented by counsel (applicant did not appear).  The ADRB again determined that the applicant had been properly discharged and again denied his request for an upgrade of his discharge on 30 November 1962.

16.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of undesirable habits or traits of character manifested by misconduct.  An undesirable discharge was normally considered appropriate.  
DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it appears that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant an upgrade of his discharge when compared to his repeated acts of misconduct during his last enlistment.  Therefore, absent evidence to show otherwise, there appears to be no basis to upgrade his discharge.

4.  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 the requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___xx_____  ___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)                                         AR20090004357





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ABCMR Record of Proceedings (cont)                                         AR20090004357



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