IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013335 


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 to an honorable discharge.

2.  The applicant states that he was only 16 years of age when he enlisted and he served in Korea for a period of 18 months.  He believes he should have received an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 27 May 1955 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 he was born on 22 January 1934 and he was inducted into the Army in Newark, NJ, at the age of 19 years, 5 months, and     10 days on 1 July 1953.  A copy of his enlistment contract is not available for review with this case.  He held military occupational specialty (MOS) 1822 (Utilities Repairman) and he was assigned to Company B, 84th Engineer Battalion.

3.  The applicant’s records also show he served in Korea for a period of 1 year, 3 months, and 15 days.  

4.  The applicant's records contain a copy of a DD Form 493 (Record of Previous Convictions) that shows an extensive history of courts-martial as follows:

	a.  Headquarters, 84th Engineer Battalion, Special Court-Martial Order Number 20, shows he was convicted of being drunk and disorderly in a public place on or about 29 January 1954.  He was sentenced to a forfeiture of $57.00 pay per month for 3 months.  The sentence was adjudged on 25 February 1954 and it was approved on 8 March 1954.

	b.  Headquarters, 84th Engineer Battalion, Summary Court-Martial Order Number 51, shows he was convicted of failing to obey an order by being outside the compound without a valid pass on or about 16 June 1954.  He was sentenced to a forfeiture of $25.00 pay.  The sentence was adjudged and approved on 6 July 1954.

	c.  Headquarters, 84th Engineer Battalion, Summary Court-Martial Order Number 95, shows he was convicted of two specifications of driving in excess of the posted speed limit on or about 26 October 1954 and on or about 2 November 1954.  He was sentenced to a forfeiture of $50.00 pay.  The sentence was adjudged on 17 November 1954 and it was approved on 18 November 1954.

	d.  Headquarters, 84th Engineer Battalion, Summary Court-Martial Order Number 98, shows he was convicted of being found in an off-limits area on or about 25 November 1954.  He was sentenced to a forfeiture of $60.00 pay, restriction for 2 months, and reduction to the lowest enlisted pay grade.  The sentence was adjudged on 8 December 1954 and it was approved on
9 December 1954.

	e.  Headquarters, 185th Engineer Battalion, Special Court-Martial Order Number 7, shows he was convicted of assaulting his superior noncommissioned officer (NCO) who was then in the execution of his office by swinging at him with his fist on or about 16 March 1955.  He was also convicted of unlawfully striking another Soldier on the body, shoulder, and face with his fists on or about
16 March 1955.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $55.00 pay per month for 6 months.

5.  On 21 March 1955, the applicant's immediate commander requested a board of officers be convened under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) for the purpose of determining the applicant's suitability for retention. The immediate commander remarked that the applicant had been a severe disciplinary problem as evidenced by his record.  In addition to his four previous courts-martial and recent assault charges, he was very unclean physically, contracted a venereal disease, he had been pathetically slow, and he failed to put any effort in any job that he was given.

6.  Between 23 and 25 March 1955, the applicant's intermediate and senior commanders recommended approval of convening a board of officers.  On 8 April 1955, the applicant was accordingly notified.  He subsequently acknowledged the notification to appear before the board of officers.  He initially elected to be represented by counsel but later changed his election and indicated that he did not desire to be represented by counsel and elected not to call witnesses on his behalf.

7.  On 11 April 1955, a board of officers convened at Headquarters, 185th Engineer Battalion, Korea for the purpose of determining the applicant's suitability for retention.  The board found that the applicant's five prior courts-martial indicated undesirable military traits and habits, that he showed evidence of unclean hygienic habits, and that he was disrespectful to and resentful of authority.  The board recommended the applicant's discharge from the Army under the provisions of Army Regulation 615-368 for unfitness with the issuance of an Undesirable Discharge Certificate.

8.  The applicant was discharged on 27 May 1955 under the provisions of Army Regulation 615-368 with an undesirable discharge.  The DD Form 214 he was issued shows he completed 1 year, 9 months, and 5 days of creditable active service and he had 52 days of lost time.

9.  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.

10.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by 
giving evidence of habits and traits of character manifested by misconduct.  Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 615-368, also stated, in pertinent part, that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under Army Regulation 615-369 (Enlisted Personnel - Discharge - Inaptitude or Unsuitability)), without referral to another board, might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted.  As examples, such circumstances would apply where the cause of unfitness had been minor, relative to the length of efficient service or where there had been a definite effort at self control; or where an individual had, during his current period of service, distinguished himself by an act of heroism, which in itself reflected great credit on the individual and the military service.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the separation of enlisted personnel.  Paragraph 3-7a, in pertinent part, states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  The applicant's contention that his discharge should be upgraded and the evidence he provided as well as his entire service record, including his service in Korea, was carefully considered, but was found to be without merit.



2.  The evidence of record shows the applicant was 19 years, 5 months, and
10 days of age at the time he enlisted and he was 20 years of age at the time he committed his various misconduct.  However, there is no indication that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service without any misconduct.

3.  The evidence of record shows the applicant had an extensive history of misconduct as evidenced by his five instances of courts-martial, undesirable military traits and habits, unclean hygienic habits, and his disrespect and resentment to authority.  Accordingly, his chain of command recommended a board of officers be convened under applicable regulations for the purpose of determining the applicant's fitness for retention in the Army.  The board found him unfit for retention and recommended his discharge with an Undesirable Discharge Certificate.  The convening authority approved the board's findings and recommendation.  

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations at the time, with no procedural errors which would tend to jeopardize his rights.  The separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review.  There is neither an error nor an injustice.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090013335



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ABCMR Record of Proceedings (cont)                                         AR20090013335



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