IN THE CASE OF:	

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090016971 


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 his undesirable discharge (UD) be upgraded.

2.  The applicant states he suffered with medical conditions at a young age that contributed to his misconduct which resulted in his discharge.

3.  The applicant provides the following documents in support of his application:

* self-authored statement
* third-party statements
* National Personnel Records Center letter, dated 19 June 2008
* Standard Forms 513 (Consultation Sheet)
* Standard Form 502 (Narrative Summary)
* Standard Form 507 (Clinical Record)
* Standard Forms 600 (Chronological Record of Medical Care)
* Standard Form 514 (Laboratory Reports)
* Standard Form 601 (Immunization Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* General Services Administration Form 6954 (Certification of Military Service)
* DD Form 4 (Enlistment Record - Armed Forces of the United States)
* enlistment statement and juvenile and youthful offender record statement
* DD Form 373 (Consent, Declaration of Parent or Legal Guardian)
* acknowledgment of service obligation
* DA Form 24 (Service Record)
* DA Form 26 (Record of Court Martial Conviction)
* DA Form 1049 (Personnel Action)
* DD Form 458 (Charge Sheet)
* Dependent Medical Care Certificate
* Statement of Physical Condition at Separation
* Standard Forms 88 (Reports of Medical Examination)
* Standard Forms 603 (Dental Health Records)
* DD Form 735 (Health Record-Abstract of Service)
* DD Form 771 (Spectacle Order Form)
* Standard Forms 89 (Report of Medical History)
* audiometer chart

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 record shows he enlisted in the Regular Army and entered active duty on 26 February 1957.  He held and served in military occupational specialty 220.00B (Clerk Typist) and the highest rank he attained while serving on active duty was private/E-2.

3.  The applicant's DA Form 24 shows he accrued 57 days of lost time during three separate periods of confinement between 12 December 1957 and 26 March 1958 in section 6 (Time Lost Under Section 6a, Appendix 2b, Manual for Courts Martial Rule 51, and Subsequent to Normal Date Expiration Term of Service).  Section 9 (Medals, Decorations, and Citations) shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  On 25 September 1957, a summary court-marital (SCM) found the applicant guilty of violating Article 134 of the Uniform Code of Military Justice by unlawfully receiving a pair of boots valued at $12.97, property of Basin Surplus Store, he knew was stolen, on or about 6 September 1957.  The resultant sentence was a forfeiture of $50.00 and 30 days of restriction.

5.  The applicant's record contains a Standard Form 88, dated 16 April 1958.  This form documents his separation physical examination.  It shows he was determined to be medically qualified for retention/separation by the examining physician.  It documents no disqualifying medical conditions that would have supported his separation processing through medical channels.

6.  The applicant's unit command recommended he be separated under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) by reason of misconduct (civil conviction).  The applicant's civil court conviction of taking a motor vehicle without permission, his time lost due to confinement, and his SCM conviction were cited as the reason for taking the action.

7.  On 25 March 1958, the separation authority approved the applicant's separation under the provisions of paragraph 24b, section IV, Army Regulation 635-206, by reason of misconduct (civil conviction) and directed the applicant receive a UD.  On 19 April 1958, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant upon his discharge shows he completed 11 months and 28 days of creditable active military service and accrued 57 days of time lost due to confinement.

9.  The applicant provides medical treatment records that show he was treated for various medical conditions during his active duty tenure.  He also provides seven third-party statements attesting to his good post-service conduct and excellent character and which support his assertions that he suffered from several medical conditions since childhood.

10.  There is no indication in the record that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

11.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge (HD) or general discharge (GD) if it were warranted based on the member's record of service.

12.  The same regulation states an HD 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  It also states a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that medical problems he suffered from childhood were the cause of the misconduct that resulted in his discharge and the supporting documents he provided have been carefully considered.  However, they provide an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record fails to show the medical problems the applicant suffered from were the primary reason for his misconduct.  There is no evidence he suffered from a medically-disqualifying condition that would have supported his separation processing through medical channels.  This is further evidenced by his separation physical examination in which the examining physician confirmed he was medically qualified for retention/separation.

3.  The record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

4.  The applicant's record documented no acts of valor or significant achievement; however, it reveals a disciplinary history that includes an SCM conviction, 57 days of time lost during three separate periods of confinement, and his civil conviction for taking a motor vehicle without permission.  Absent any evidence of error or injustice related to his discharge processing, his overall record of short and undistinguished service did not support the issuance of an HD or GD by the separation authority at the time and does not support an upgrade now.

5.  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 which would satisfy this requirement.

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)                                         AR20090016971



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016971



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1