IN THE CASE OF:	  

		BOARD DATE:	    16 September 2010

		DOCKET NUMBER:  AR20100009901 


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 that at the time of his discharge there were extenuating circumstances involving classified operations that were not considered, he was reduced in rank from master sergeant to private in 27 days, and he had a personality conflict with his commander.

3.  The applicant did not provide any additional documentary evidence in support of this application.

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 on 20 August 1946.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 73729 (Combat Construction Specialist).  The highest rank/grade he attained while serving on active duty was master sergeant/E-7.  He received an appointment as a second lieutenant in the U.S. Army Reserve on 4 October 1954.

3.  Records show the applicant was awarded a Purple Heart for wounds received in a battle with enemy forces in Korea on 22 October 1950.  Other awards reflected are the:

* Bronze Star Medal with "V" Device
* Korean Service Medal with bronze arrowhead and three bronze service stars
* Army of Occupation Medal with Japan Clasp
* National Defense Service Medal
* Army Commendation Medal with Metal Pendant
* United Nations Service Medal
* Republic of Korea Unit Citation
* Presidential Unit Citation
* Master Parachutist Badge

4.  Section 24 of the applicant's WD AGO Form 24A (Service Record) for the period 20 August 1946 through 7 July 1949 shows he received all "excellent" conduct and efficiency ratings during that period.

5.  Section 4 of his DA Form 24 (Service Record) covering the period 13 June 1950 through 31 March 1959 shows he received all "excellent" conduct and efficiency ratings during the period 13 June 1950 through 11 March 1958.  For the period 1 April 1958 through 31 March 1959, he received an "unsatisfactory" rating for conduct and efficiency.

6.  On 14 January 1959, he was convicted by a special court-martial of being absent without leave (AWOL) during the period 13 December 1958 through 23 December 1958 and he was reduced to staff sergeant (SSG)/E-6.

7.  The applicant's DA Form 24 shows he was reduced from SSG/E-6 to private (Pvt)/E-2 by Special Orders 16, dated 24 January 1959; however, the reduction order is not contained in the available records.

8.  Records show his unit commander wrote the applicant's spouse a letter, dated 9 February 1959, in response to her letter, dated 30 December 1958, requesting information on the whereabouts of her husband.  The commander informed her of the special court-martial conviction and reduction by one grade.  He informed her that the applicant then appeared before a board of officers on the charge of inefficiency for not maintaining his finances and that the board determined he was inefficient.  As a result, he was reduced to the rank/grade of Pvt/E-2.  The records are void of any board proceedings that reflect this action.

9.  The applicant's record contains a Team 3 (Provisional), 77th Special Forces Group (Airborne), Fort Bragg Form Letter 681, dated 13 February 1959, subject:  Request for a Physical and Psychiatric Evaluation, from his unit commander to Dispensary Number 4 as part of the pre-separation process under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Inaptitude or Unsuitability).  The examining physician noted the physical examination revealed no disqualifying physical defects sufficient to warrant discharge.

10.  A memorandum from the applicant's commander, dated 12 March 1959, reveals attempts to rehabilitation him included a unit reassignment, a thirty day leave to give him time to resolve his problems, and counseling on several occasions.  The commander noted all attempts failed to correct the situation.

11.  On 14 March 1959, the unit commander notified the applicant that a board of officers was convening on 16 March 1959 to consider him for separation under the provisions of Army Regulation 635-209.  The applicant was directed to appear before the board and advised of his right to have witnesses testify on his behalf.  He acknowledged receipt of the notification and declined to have any witness testify on his behalf.

12.  The applicant's records contain an approved DA Form 37 (Report of Proceedings of Board of Officers), dated 19 March 1959.  The board convened to determine if the applicant should be discharged under the provisions of Army Regulation 635-209.  The board found him unsuitable for further service and recommended his discharge.

13.  On 31 March 1959, the applicant was discharged under the provisions of Army Regulation 635-209, paragraph 3, by reason of unsuitability due to disruptive reactions to acute or special stress, with character of service as under honorable conditions.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged accordingly.  He was credited with a total of 12 years, 4 months, and 18 days of active service with 33 days of time lost.  He was issued a DD Form 257A (General Discharge Certificate).

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

15.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for inaptitude or unsuitability.  Action would be taken to discharge an individual when it was determined, through proper board action, that the individual could not be developed to the extent where he could be expected to absorb further military training and/or become a satisfactory Soldier.  Paragraph 3 stated that discharge for unsuitability would be effected when it was determined that an individual was unsuitable for further military service because of any of the following reasons:  (1) lack of physical stamina; (2) character or behavior disorders; (3) apathy, defective attitude, or inability to expend effort constructively; or (4) nonpersistent but temporarily disruptive reactions to acute or special stress, such as uncontrollable combat fear or acute situational maladjustments.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support this contention.

2.  The applicant states that at the time of his discharge there were extenuating circumstances involving classified operations that were not considered.  However, there is no evidence in his record nor did the applicant provide any evidence to support this contention.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.



4.  The applicant's record includes evidence which shows he was convicted by a special court-martial for AWOL, was reduced to Pvt/E-2 by a board of officers, and numerous attempts were made to rehabilitate him.  Based on this record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20100009901



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ABCMR Record of Proceedings (cont)                                         AR20100009901



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