BOARD DATE:     29 June 2010

   DOCKET NUMBER: AR20100007115
 
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 or a general discharge.

2.  The applicant did not provide a statement.

3.  The applicant provides:

* two self-authored memoranda, dated 19 and 29 March 2008
* a letter from his former employer, dated 23 July 1975
* a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 22 September 1956, the applicant enlisted in the Regular Army for a period of 2 years in pay grade E-1.  He completed the required training and he was awarded military occupational specialty 111.07 (Light Weapons Infantryman).

3.  On 21 October 1957, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for unauthorized absence from the company area.  His imposed punishment was 
7 days extra duty.

4.  On 31 October 1957, the applicant received another NJP for disobeying a superior noncommissioned officer (NCO).  His imposed punishment was 14 days of extra duty.

5.  On 8 November 1957, the applicant was convicted by a summary court-martial for feigning an injured wrist for the purpose of avoiding field duty and for failing to go at the time prescribed to his appointed place of duty.  He was sentenced to confinement at hard labor for 30 days, reduction to pay E-1, and a forfeiture of $55.00 pay.

6.  On 23 November 1957, the company commander requested that the applicant appear before a board of officers to determine whether he should be discharged prior to his expiration term of service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character).  The commander stated the reason for his recommended action was the applicant's habits or traits of character (asocial or amoral trend, alcoholism, misconduct) and repeated commission of petty offenses.  He also provided statements from the applicant's noncommissioned officers attesting to his character.

7.  The applicant acknowledged notification to appear before a board of officers.  He desired counsel to appear in his behalf.  He did not desire witnesses to appear in his behalf.

8.  On 5 December 1957, a board of officers convened to determine whether he should be retained in the service or discharged prior to his expiration term of service.  The applicant was present and he was represented by counsel.  The applicant was sworn in and submitted a statement in his behalf.  In his statement, he stated that he could not adjust to the Army in Germany, but that he could in the [United] States, and that he had planned on getting out of the Army on a Category III Discharge and he was depressed when he didn't get one.  The board 

considered all of the evidence and determined that the applicant was a habitual 
shirker and that he repeatedly committed petty offenses.  The board recommended that the applicant be furnished an Undesirable Discharge Certificate under the provisions of Army Regulation 635-208.

9.  On 9 January 1958, the applicant was discharged in pay grade E-1, with an undesirable discharge characterized as under other than honorable conditions. He had completed a total of 1 year, 2 months, and 24 days of active service with 24 days of time lost.

10.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-208, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character.  This Army regulation provided, in pertinent part, that a recommendation for discharge because of undesirability will be made in the case of an enlisted person who gives evidence of habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalize, drug addiction, pathological lying, or misconduct.  This Army Regulation also provides that Soldiers discharged because of undesirable habits or traits of character will be furnished an Undesirable Discharge Certificate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the policies and procedures for the separation of enlisted personnel. 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.

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 request was carefully considered and found to be insufficient in merit.

2.  The evidence of record shows the applicant had a history of undesirable habits or traits of character with habitual shirking and repeatedly committing petty offenses.  These undesirable habits or traits of character led to the applicant receiving a summary court-martial, with confinement at hard labor, and receiving NJP under the provisions of Article 15, UCMJ, on two separate occasions.

3.  Based on the evidence of record, the applicant's discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that 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)                                         AR2010