IN THE CASE OF:	  

		BOARD DATE:	    28 September 2010

		DOCKET NUMBER:  AR20100008034 


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 that his undesirable discharge (UD) be upgraded.

2.  The applicant states he served in the Army from 1954 to 1959 and received two honorable discharges prior to receiving his bad discharge.  He did not get into any trouble until the last year of his service and has not been in any trouble since his discharge.  

3.  The applicant provides no supporting documentation.

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 service records were damaged in the fire at the National Personnel Records Center in 1973.  Many of the documents are damaged; however, the majority of his record is sufficiently legible to allow the Board to conduct a fair and impartial review of this case.  

3.  The applicant enlisted in the Regular Army on 4 February 1954 and completed training as a cook.  

4.  He was honorably discharged on 2 February 1955 and 28 May 1957 for the purpose of immediate reenlistment on both occasions. 

5.  The available records contain little or no information related to his service prior to his reenlistment in 1957. 

6.  On 7 March 1959, his unit commander recommended that the applicant be discharged as an undesirable.  He stated that the applicant's performance as a cook was below standard and he was considered an agitator.

7.  On 17 March 1959, a special court-martial found the applicant guilty of being absent without leave (AWOL) from 2400 hours 3 March through 0500 hours        4 March 1959 and of violating a general order by having an illegal weapon, a gas pistol.  His sentence included confinement for one month and reduction to E-1.

8.  On 19 March 1959, separation actions were initiated with a consideration for discharge under either Army Regulation 635-208 [misconduct] or 209 [personality disorder].

9.  On 25 March 1959, the applicant was referred for a mental health evaluation.  He was described as a person of average to low intelligence, who reacts very slowly and often vaguely.  He was immature, insecure, rebellious and restless.  He began drinking upon entering the military and considers himself a heavy drinker.  He looks upon his drinking, his contracting venereal disease, and his general behavior in general with complete apathy.  He was diagnosed as having a passive dependent reaction.  The attending physician recommended the applicant be separated under the provisions of Army Regulation 635-208.

10.  During the interview, the attending physician noted that the applicant stated he had received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 10 occasions since entering the military.  It was noted that his record contained documentation for only one NJP and his special court-martial. 

11.  A Standard Form 600 (Chorological Record of Medical Care) covering the period 1 May 1957 through 6 March 1959 shows the applicant received confinement physicals on 11 January 1958 and 6 March 1959 and at least two periods of treatment for venereal disease.
12.  On 28 March 1959, a board of officers found the applicant unsuitable for further military service due to repeated acts of misconduct.  They recommended the applicant be discharged under Army Regulation 635-208 with a UD.

13.  In his approval of the discharge recommendation, the 1st Battle Group Commander stated that the applicant first came to his attention in early February 1959, when he directed an investigation of the applicant's reduction in grade for a period of AWOL.  During the period of the investigation the applicant had missed several bed checks and it was found that he had concealed, from the Commander, the fact that while AWOL he had received a disciplinary report for fighting, drunkenness, and being out of uniform.  He had been given an administrative transfer; however,  on the day of that transfer he was apprehended by the Military Police for disorderly conduct, no pass, and possession of a gas pistol, considered to be an illegal weapon.  

14.  The applicant was discharged with a UD on 25 April 1959 under the provisions of Army Regulation 635-208 with a separation program number of  387 (habits and traits resulting in misconduct).

15.  On 20 February 1961, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for separation.

16.  Army Regulation 635-208, then in effect, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character.  The regulation stated, in pertinent part, that recommendation for discharge because of undesirability would be made in the case of an enlisted person who gave evidence of antisocial or amoral trends resulting in misconduct or possessing unclean habits, including repeated venereal infections.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted the characterization of service was considered to be under other than honorable conditions and an undesirable discharge was normally issued.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  In pertinent part, it provides the following:

	a.  an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty;

	b.  a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge; and

	c.  a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct or in lieu of trial by court martial when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he served in the Army and received two honorable discharges prior to receiving his bad discharge.  He did not get into any trouble until the last year of his service and has not been in any trouble since his discharge.  

2.  While the documentation of his earlier periods of service and his records NJP's are not available, by his own admission at the time of his separation, the applicant had anywhere from 1 to 10 NJP's in addition to his special court-martial.

3.  In addition to his NJP's, the applicant was also treated on at least two, and possibly two additional occasions, for different types of venereal diseases.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20100008034





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)