IN THE CASE OF:	

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021944 


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 discharge to honorable.

2.  The applicant states he only had an eighth grade education when he joined the Army and he came from a broken home, having been raised with an alcoholic stepfather and mother, and did not have family to guide him.  He made mistakes which he regrets.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of transfer or Discharge), dated 17 January 1957.

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 enlisted in the Regular Army for a period of 4 years on 14 September 1954 and held military occupational specialty 410.00 (Ammunitions Supply Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  On 8 May 1956, he pled guilty at a summary court-martial to one specification of being absent without leave (AWOL) from on or about 4 May 1956 to on or about 6 May 1956.  The court sentenced him to 30 days of hard labor.

4.  His records also reveal an extensive history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

* on 27 June 1956, for failure to comply with instructions
* on 27 August 1956, for unsafe operation of a government vehicle
* on 30 October 1956, for being disorderly
* on 6 November 1956, for breaking restriction
* on 13 November 1956, for being AWOL

5.  On 21 November 1956, his immediate commander recommended his separation from the Army under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character) by reason of unfitness.  He commented that the applicant had rapidly become an administrative burden on his unit due to his various infractions.  His conduct and efficiency had been unsatisfactory and despite numerous counseling efforts, he failed to develop into a worthwhile Soldier and should be eliminated.

6.  On 28 November 1956, a board of officers convened at Schofield Barracks, HI.  The applicant was present; however, he waived his right to counsel.  He was advised of the type of discharge he could receive and the possible benefits he could lose as a result of the board action.  The board determined that further rehabilitation efforts were useless in his case and recommended his elimination for undesirability/unfitness with an Undesirable Discharge Certificate.

7.  On 30 November 1956, the separation/convening authority approved the report of proceedings of the board of officers and ordered the applicant discharged and furnished an Undesirable Discharge Certificate.

8.  He was discharged on 17 January 1957.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 by reason of unfitness with an under other than honorable conditions character of service and he was furnished an Undesirable Discharge Certificate.  He completed 2 years, 3 months, and 6 days of creditable active service.

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

10.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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 was carefully considered.  However, there is insufficient evidence to grant him the requested relief.

2.  His records reveal a disciplinary history which includes one known instance of a court-martial, five instances of nonjudicial punishment, and two instances of AWOL.  Accordingly, his chain of command recommended his elimination from the Army.  His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  There is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his extensive misconduct was a result of his upbringing.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

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)                                         AR20090021944



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ABCMR Record of Proceedings (cont)                                         AR20090021944



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