IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100008696 


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, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC) to general under honorable conditions.

2.  The applicant states he was young and a hot-head.  He went on leave and decided to extend his leave causing him to be absent without leave (AWOL).  He is much older now, has always regretted his actions, and would appreciate an upgrade of his service record after being an upstanding and contributing citizen for many years.  His rash decision has caused him much grief.

3.  The applicant provides no documentation in support of his request.

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 26 April 1954.  After completing initial entry training, he was awarded military occupational specialty (MOS) 112 (Heavy Weapons Infantryman).  He later served in MOS 111 (Light Weapons Infantryman) and MOS 941 (Cook).  He reenlisted for a period of 6 years on 10 August 1956.

3.  Special Court-Martial Order Number 101, Headquarters, Overseas Replacement Station, Camp Kilmer, NJ, dated 3 February 1955, shows the applicant was convicted of two specifications of being AWOL.  He was sentenced to confinement at hard labor for 3 months, reduction to private/E-1, and forfeiture of $55.00 per month for 6 months.  Special Court-Martial Order Number 134, same headquarters, dated 16 February 1955, suspended the unexecuted portion of the sentence to confinement.

4.  A DD Form 458 (Charge Sheet) shows that on 17 April 1957 the applicant was charged with two specifications of being AWOL.

5.  A memorandum from Headquarters, 20th Infantry Regiment, dated 24 April 1957, subject:  Results of Trial by Summary Court-Martial, shows the applicant was convicted of one specification of being AWOL and sentenced to restriction to his company area for 60 days.

6.  Special Court-Martial Order Number 15, Headquarters, 1st Battle Group, 20th Infantry, dated 24 December 1957, shows the applicant was convicted of theft.  He was sentenced to confinement at hard labor for 30 days and forfeiture of $65.00 per month for 6 months.

7.  Special Court-Martial Order Number 27, same headquarters, dated 17 February 1958, shows the applicant was convicted of being drunk and disorderly in a public place.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $65.00 per month for 6 months.  Special Court Martial Order Number 32, same headquarters, dated 25 February 1958, suspended the unexecuted portion of the sentence to confinement.  Special Court-Martial Order Number 3, dated 2 May 1958, vacated the suspension.

8.  On 9 May 1958, the applicant's commander submitted a request that the applicant appear before a board of officers convened under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character) to determine if he should be separated from the Service.  As justification for the request, his commander cited his court-martial convictions and the fact that, immediately after arriving at the unit, the applicant went AWOL.

9.  A Report of Psychiatric Evaluation, dated 12 May 1958, shows the applicant was able to distinguish right from wrong, adhere to the right, understand the nature of his offenses, and cooperate with counsel in his own defense.  The evaluation found he had no apparent mental or physical condition warranting medical discharge.  The examining psychiatrist recommended administrative separation from military service under the provisions of Army Regulation 635-208 by reason of traits of character which are undesirable in the military setting.

10.  On or about 22 May 1958, the applicant was notified of the recommendation that he be discharged for undesirability and that a board of officers would convene to make a determination on the recommendation.  He was informed of witnesses who would be called, his right to cross-examine any adverse witnesses, and his right to present evidence on his behalf, testify in person, submit a written statement, or remain silent.  He declined counsel and indicated he did not desire witnesses on his behalf.

11.  On 26 May 1958, a board of officers convened at Fort Carson, CO.  The applicant was present.  He was advised of the purpose of the board, the regulations under which it convened, the type of discharge to be awarded, and the effect of an undesirable discharge on his civil rights, veteran's rights, and reentry into the service.  The applicant stated he understood the impact of an undesirable discharge.  The board determined he was not desirable for further service and recommended that he be discharged because of undesirable habits or traits of character with an Undesirable Discharge Certificate.

12.  On 6 June 1958, the separation authority approved the report of proceedings of the board of officers, ordered the applicant's discharge, and ordered that he be furnished an Undesirable Discharge Certificate.  

13.  He was discharged on 13 June 1958.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged UOTHC and furnished an Undesirable Discharge Certificate.  He completed 3 years, 8 months, and 23 days of creditable active service.

14.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character.  The regulation stated that a recommendation for discharge because of undesirability would be made in the case of an enlisted person who:  (1) gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct; (2) possessed unclean habits, including repeated venereal infections; (3) repeatedly committed petty offenses not warranting trial by courts-martial; (4) was a habitual shirker; (5) was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service; or (6) demonstrated behavior, participated in activities, or associations which tended to show that he was not reliable or trustworthy.  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, an undesirable discharge was normally issued.

16.  Army Regulation 635-200 sets forth the basic authority 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 evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge to general under honorable conditions.

2.  The applicant's separation for undesirable habits or traits of character was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Based on his record of indiscipline, which includes four convictions by special court-martial, 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 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)                                         AR20100008696



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ABCMR Record of Proceedings (cont)                                         AR20100008696



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