BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008071 


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 undesirable discharge.

2.  The applicant states he was eligible and recommended for promotion as he approached the end of his active duty service.  His commanding officer at the time tried to stop his pending discharge, but it was too late as the orders were already issued.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).

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 was inducted into the Army of the United States on 25 February 1952 and he was assigned to Fort Dix, NJ.  The highest rank/grade he attained during his military service was private/E-2.

3.  His records reveal an extensive history of misconduct as follows:

	a.  On 4 June 1952, he pled guilty at a summary court-martial at Camp Edwards, MA, to one specification of being absent without leave (AWOL) from on or about 27 March 1952 to on or about 13 May 1952.  The court sentenced him to confinement at hard labor for 15 days and a forfeiture of $20.00 pay.  His sentence was approved on 6 June 1952.

	b.  On 5 November 1952, he pled not guilty at a special court-martial at Camp Edwards, MA, to one specification of being AWOL from on or about 23 June 1952 to on or about 5 October 1952.  The court found him guilty and sentenced him to confinement at hard labor for 6 months and a forfeiture of $50.00 pay per month for 6 months.  His sentence was approved on 20 November 1952.

	c.  On 12 June 1953, he pled not guilty at a special court-martial at Fort Devens, MA, to one specification of being AWOL from on or about 5 April 1953 to on or about 20 May 1953.  The court found him guilty and sentenced him to confinement at hard labor for 4 months and a forfeiture of $24.00 pay.  His sentence was approved on 19 June 1953.

	d.  On 15 December 1953, he pled not guilty at a special court-martial at Fort Dix, NJ, to one specification of being AWOL from on or about 12 October 1953 to on or about 30 November 1953.  The court found him guilty and sentenced him to confinement at hard labor for 4 months and a forfeiture of $24.00 pay per month for 4 months.  His sentence was approved on 16 December 1953.

4.  On 15 July 1954, his immediate commander requested a board of officers be convened under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) for the purpose of determining the applicant's fitness for retention.  The immediate commander remarked that the applicant had been a severe disciplinary problem as evidenced by his record.  Accordingly, he was notified to appear before a board of officers to determine whether he should be discharged from the Army prior to the expiration of his term of service.  He acknowledged receipt, but he elected not to be represented by counsel and not to call any witnesses.

5.  On 19 July 1954, a board of officers convened at Valley Forge Army Hospital, Phoenixville, PA, for the purpose of determining his fitness for retention.  The board found him unqualified for retention in the military service as he gave evidence of traits of character which rendered his retention in the service undesirable and recommended his discharge under the provisions of Army Regulation 615-368 for unfitness with the issuance of an Undesirable Discharge Certificate.

6.  On 28 July 1954, the convening authority approved the board of officers' findings and recommendations and ordered the applicant discharged by reason of unfitness with an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 5 August 1954.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 615-368 with an undesirable discharge.  This form also shows he completed 6 months and 13 days of creditable active service and he had 688 days of lost time.

7.  On 26 February 1959, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

8.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct.  Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct.  An undesirable discharge was normally considered appropriate.

9.  Army Regulation 615-368 also stated that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability under Army Regulation 615-369 (Enlisted Personnel - Discharge - Inaptitude or Unsuitability) without referral to another board might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted.  As examples, such circumstances would apply where the cause of unfitness had been minor relative to the length of efficient service or where there had been a definite effort at self control or where an individual had distinguished himself by an act of heroism during his current period of service, which in itself reflected great credit on the individual and the military service.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7a, in pertinent part, states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.

11.  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, but was found to be without merit.

2.  The evidence of record shows he had an extensive history of misconduct as evidenced by his four instances of courts-martial, habitual AWOL, and undesirable military traits and habits.  Accordingly, his chain of command recommended a board of officers be convened under applicable regulations for the purpose of determining his fitness for retention in the Army.  The board found him unfit for retention and recommended his discharge with an Undesirable Discharge Certificate.  The convening authority approved the board's findings and recommendation.

3.  His administrative separation was accomplished in compliance with applicable regulations at the time with no procedural errors which would tend to jeopardize his rights.  The separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review.  There is neither an error nor an injustice.


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)                                         AR20100008071



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)