IN THE CASE OF:	  

		BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090019091 


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.

2.  The applicant states he needs his discharge upgraded for burial benefits.

3.  The applicant did not provide any supporting documents with 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 enlisted in the Regular Army on 20 July 1954.  He completed the required training and he was awarded military occupational specialty 050.00 (Low Speed Radio Operator).

3.  The applicant's disciplinary record shows he was tried by a court-martial as follows:

* Summary Court-Martial adjudged on 14 December 1956 for breaking restriction.  He was sentenced to reduction to the rank/grade of private (PV2)/E-2 and forfeiture of $70.00 for one month

* Special Court-Martial adjudged on 9 October 1957 for sleeping while posted as a sentinel.  He was sentenced to confinement at hard labor for four months and forfeiture of $65.00 for one month

4.  On 14 March 1958, the applicant approached his company commander telling him that he "can no longer take it" and wouldn't "make it" to the expiration of his term of service in December 1958.  The company commander referred the applicant to the Mental Hygiene Consultation Services at Fort Carson, CO.

5.  On 19 March 1958, the applicant received a psychiatric examination by an Army psychiatrist.  The psychiatrist stated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in military separation board proceedings.  Further, he stated he found no disqualifying mental defects sufficient to warrant disposition through medical channels nor was a psychiatric disease apparent at the time of the examination.  The examiner granted psychiatric clearance for any administrative or disciplinary action deemed appropriate in the applicant's case by his command.  At that time, the psychiatrist stated the applicant's traits of character were undesirable in a military setting.

6.  On 28 April 1958, the applicant was notified by his commander of his intent to recommend his discharge by reason of undesirability.  The applicant signed an affidavit wherein he acknowledged that he had been counseled and advised of the action being recommended against him and consented to appear before a board of officers.  He indicated he did not desire counsel or any witnesses.

7.  On 28 April 1958, the applicant's commander recommended his elimination from the service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) with an undesirable discharge.  The commander cited a specific allegation of undesirability.

8.  On 2 May 1985, a board of officers was convened to consider the applicant for separation under the provisions of Army Regulation 635-208 for misconduct.  The board's findings and recommendations were that sufficient cause existed to 


discharge the applicant from the U.S. Army and that the applicant did not present sufficient evidence to the board in his own behalf to defer discharge.  In addition, the board recommended his discharge with an undesirable discharge with a characterization of under other than honorable conditions.  The appropriate approval authority approved the findings and recommendations of the board.

9.  On 6 May 1958, the appropriate authority approved the recommendation for discharge and directed the applicant be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted grade.

10.  On 9 May 1958, a captain of the Medical Corps indicated on the applicant's separation medical examination that he was qualified for separation under the provisions of Army Regulation 635-208.

11.  On 20 May 1958, the applicant was discharged under the provisions of Army Regulation 635-208 by reason of undesirability and issued an Undesirable Discharge Certificate.  He had completed 3 years, 7 months, and 24 days of net active service with 68 days of time lost.

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

13.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities, sexual perversion, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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 he wants his discharge upgraded for entitlement to burial benefits.

2.  A review of the applicant's record of service includes conviction by two  courts-martial.  With this established record of misconduct, the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  The applicant's available records document no acts of valor or significant achievement.

3.  There is no evidence that the applicant's separation was not in compliance with the applicable regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  Based on the foregoing, there is insufficient basis to upgrade the applicant's undesirable discharge to a general under honorable conditions discharge.

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 that would satisfy that 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)                                         AR20090019091



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ABCMR Record of Proceedings (cont)                                         AR20090019091



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