BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090012053 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states that his undesirable discharge was unwarranted.  He served honorably during his first enlistment and was unjustly treated because he was an American Indian (Navajo).  During his enlistment in the Army in the 1950's there was a lot of prejudice.  Minorities were treated differently.  Except for his time in the Army, he has lived his entire life on the Navajo Reservation.  He has worked for the Federal Government for 27 years.  When he went into the Army, he had intended to make it a career so that he could escape poverty on the reservation.  Since returning to the reservation, he has become involved with his community by providing guidance to the youth and helping them choose the right path.  He has lived his life with the strength of his religion.  He has gained the respect of his community leaders.  Four of his grandchildren have joined the military in respect for their grandfather.  For 50 years he has served his community and is a respected leader.

3.  The applicant provides copies of his employment records; four letters of support; and three certificates recognizing his service to the U.S. Government, Western Navajo Agency, and his Navajo community.





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 20 January 1949, the applicant enlisted in the Regular Army for 
3 years.  He completed his initial training and was awarded military occupational specialty 4121 (General Utilities Repairman).

3.  On 13 May 1949, the applicant was assigned to A Company, 240th Engineer Construction Battalion in Japan.

4.  On 14 September 1949, the applicant was convicted by a summary court-martial of entering an off-limits tea room.  The sentence included restriction for 
1 month.

5.  On 15 March 1950, the applicant was assigned for duty with A Company, 11th Engineer Construction Battalion.

6.  On 24 March 1950, the applicant was convicted by a summary court-martial of being drunk.  The sentence included a forfeiture of $25.00 pay per month for 
1 month.

7.  From 11 July 1950 through 3 June 1951, he served with his unit in the Republic of Korea and participated in five campaigns.  He was promoted to corporal on 1 April 1951.

8.  On 1 June 1951, the applicant departed the Republic of Korea and returned to the United States.  He was subsequently assigned to Fort Huachuca, AZ.

9.  On 25 February 1952, the applicant was honorably discharged for the purpose of immediate reenlistment.  He had completed 3 years, 1 month, and 5 days of creditable active duty service.

10.  On 26 February 1952, he reenlisted for 3 years.  He was assigned to Fort Worden, WA.

11.  On 15 August 1952, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) for 5 days.  The sentence included reduction to private (PV2), pay grade E-2.

12.  On 19 January 1953, the applicant was assigned to D Company, 1st Engineer Combat Battalion, located in Germany.

13.  On 10 March 1953, the applicant was convicted by a summary court-martial of missing bed check.  The sentence included a forfeiture of $65.00 pay per month for 1 month and restriction for 2 months.

14.  On 19 April 1953, the applicant was reassigned to Company K, 16th Infantry Regiment, located in Germany.

15.  On 7 May 1953, the applicant was convicted by a summary court-martial of failing to go to reveille.  The sentence included a forfeiture of $25.00 pay per month for 1 month and confinement at hard labor for 30 days (suspended).

16.  On 17 February 1954, the Dispensary Surgeon examined the applicant.  The general physical examination revealed no abnormalities.  A mental examination revealed no abnormal or unusual content.  There were no disqualifying mental or physical defects sufficient to warrant discharge under the provisions of Army Regulation 600-450 (Separation for Physical Disability).

17.  On 20 February 1954, the applicant’s commander recommended that the applicant be separated from military service under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character), for unfitness.  The commander stated that the applicant was in constant trouble.  Every effort to rehabilitate him had been to no avail.

18.  On 19 March 1954, a board of officers convened under the provisions of Army Regulation 615-368 to examine the applicant and determine whether he should be discharged prior to the expiration of his normal term of service due to habits or traits of character which render retention in the service undesirable because of unfitness.

	a.  The applicant did not desire counsel or witnesses to appear in his behalf. His right to individual counsel was explained to him.

	b.  Four witnesses testified, essentially stating that when the applicant was sober, he was good Soldier.  However, when he drinks, he may go AWOL or become a source of trouble.  They would not take a chance on him.

	c.  The applicant made a statement, essentially stating that he did not see why he was not fit for the Army.  He had been in the Army since 1949 and his brother had served before him.  The applicant stated he was a good Soldier and wanted another chance to prove it.  He did not want a bad discharge.  When asked if he could stop drinking, his answer was, "I can lay off a little bit,"…"I don't think it is too late to straighten up."

19.  The board of officers found that the evidence showed the applicant to have habits which rendered retention in the military undesirable and recommended that the applicant be discharged from the service because of unfitness and that he be given an Undesirable Discharge Certificate.

20.  On 26 March 1954, the findings and recommendations of the board of officers were approved by the appropriate authority.

21.  Accordingly, the applicant was discharged on 29 April 1954 and issued an Undesirable Discharge Certificate.  He had completed a total of 5 years and 
16 days of net active service with 84 days of lost time due to AWOL and confinement.

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

23.  Army Regulation 615-368, then in effect, set forth the basic authority for the separation of enlisted personnel for unfitness.  It stated, in pertinent part, that Soldiers could be separated for unfitness for habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, drug addiction, misconduct, unclean habits, including repeated venereal infections, repeated commission of petty offenses not warranting trial by court-martial, habitual shirking, or a recommendation by medical authorities indicating that the member possessed an antisocial personality.  An undesirable discharge was normally considered appropriate.

24.  The applicant's employment records show that his performance was satisfactory.



25.  The four letters of support essentially state that the applicant is a hardworking and conscientious individual.  His ability to work with people is exceptional.  He is a generous, caring, and positive person who has outstanding personal qualities of honesty, cooperativeness, and good humor.  He is a highly respected individual, not only in his community, but also in the surrounding communities.

26.  The three certificates provided by the applicant indicate that he was awarded a "20-Year" pin for his service in the U.S. Government; he was recognized for his outstanding service to the Western Navajo Agency Uranium Victims in 2006; and he received an Outstanding Community Service Award in 2002.

27.  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.

28.  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 undesirable discharge should be upgraded to honorable.

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

3.  Notwithstanding the applicant's assertion that his discharge was unjust, there is no available evidence to show that he was the subject of prejudice or was treated unfairly.  Furthermore, it appears that all of his problems were the result of his own failure to control his drinking.


4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his 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 the aforementioned requirement.

7.  In view of the foregoing, 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)                                         AR20090012053



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ABCMR Record of Proceedings (cont)                                         AR20090012053



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