IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012128 


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 general discharge to an honorable discharge.

2.  The applicant states his discharge was too harsh in light of his overall record of service.  He also states the presumption of regularity that might normally permit the Board to assume that the service acted correctly in characterizing his service as less than honorable does not apply to his case because of the evidence he submits.  He adds his discharge should be upgraded because:

* clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge
* under current standards, he would not receive the type of discharge he did
* his average conduct and efficiency ratings/behavior and proficiency marks were good
* he received awards and decorations
* he received letters of recommendation
* he had combat service
* his record of promotions show he was generally a good service member
* there were other acts of merit
* he was close to finishing his tour and it was unfair to give him a bad discharge
* he had a prior honorable discharge
* he has been a good citizen since discharge


* his ability to serve was impaired because of marital, family, and child care problems
* personal problems impaired his ability to serve

3.  The applicant provides copies of 20 documents from his military service records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests to be appropriately informed of all actions taken in the applicant's case.

2.  Counsel states, in effect, the applicant's discharge should be upgraded.

3.  Counsel provides the applicant's application with the enclosures.

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 military service records are not available to the Board for review.  His records were requested from the National Personnel Records Center in St. Louis, MO, but they are on loan to another agency.  However, there are sufficient documents in the applicant's Record of Trial, along with the documents the applicant provides in support of his request, for the Board to conduct a fair and impartial review of this case.

3.  The applicant had prior periods of honorable active duty service in the U.S. Army in an enlisted status from 28 March 1941 through 7 December 1945 and from 26 October 1949 through 6 December 1951, and in a warrant officer status from 7 December 1951 through 30 November 1957.


4.  The applicant enlisted in the Regular Army for a period of five years on
21 January 1958 in the rank of sergeant in military occupational specialty 717.60 (Administrative Specialist).

5.  The applicant's Record of Trial, in pertinent part, shows:

   a.  The applicant was tried at a general court-martial in May 1959.  He pled not guilty to the charge of violation of Article 85 (Desertion), Uniform Code of Military Justice (UCMJ), but pled guilty of a violation of Article 86 for being absent without leave (AWOL) from 15 October 1958 to 11 March 1959.

		(1)  He was found not guilty to the charge of desertion, but guilty of being AWOL.  On 25 May 1959, he was sentenced to reduction to the enlisted grade of recruit (E-1), forfeiture of all pay and allowances, confinement at hard labor for one year, and to be dishonorably discharged from the service.

   	(2)  On 9 July 1959, the convening authority approved only so much of the sentence that provided for reduction to the grade of recruit (E-1), forfeiture of $43.00 of pay per month for 9 months, confinement at hard labor for 9 months, and a dishonorable discharge (suspended for the period of confinement and one year thereafter unless the suspension was sooner vacated), and ordered it duly executed.  The convening authority also directed that the Record of Trial be forwarded to The Judge Advocate General of the Army for review.

   b.  An Office of The Judge Advocate General, Washington, DC, U.S. Army Board of Review, Decision, dated 20 August 1959, shows that the Board of Review reduced the dishonorable discharge to a bad conduct discharge.  The Board of Review found the findings of guilty and the sentence as approved by proper authority as correct in law and fact.  It also determined, on the basis of the entire record, that the findings of guilty and only so much of the approved sentence as provided for a bad conduct discharge, suspended for the period of confinement and six months thereafter, at which time the bad conduct discharge was to be remitted without further action unless the suspension was sooner vacated; forfeiture of $43.00 pay per month for 9 months; confinement at hard labor for 9 months; and reduction to the grade of recruit (E-1) should be approved.  Accordingly, such findings of guilty and the sentence as modified were affirmed.

   c.  On 3 September 1959, the applicant and his counsel acknowledged with their signatures receipt of the decision of the Board of Review and the right to petition the Court.  The applicant indicated he did not desire to petition for an 


appeal to the Court of Military Appeals and requested the action be taken to finalize the sentence as affirmed by the board.

6.  In support of his application, the applicant provides the following documents.

   a.  A WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) that shows he was inducted on 28 March 1941 and honorably discharged on 7 December 1945 in the rank of master sergeant.

      (1)  At the time he had completed 4 years, 1 month, and 9 days of continental service; 7 months and 1 day of foreign service; and 4 years,
8 months, and 10 days of total service for pay purposes.

      (2)  This document also shows he was awarded the American Defense Service Medal, American Campaign Medal, Asiatic-Pacific Campaign Medal, Army Good Conduct Medal, World War II Victory Medal, and the Expert Infantryman Badge.

   b.  A DD Form 214 (Report of Separation from the Armed Forces of the United States) that shows he enlisted and entered active duty on 26 October 1949 and he was honorably discharged on 6 December 1951 in the rank of sergeant to accept appointment as a warrant officer in the U.S. Army.

   	(1)  At the time he had completed 2 years, 1 month, and 11 days of net service this period; 7 years, 3 months, and 15 days of other service; and 9 years, 4 months, and 26 days of total service for pay purposes.

   	(2)  Item 27 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) shows the entry "None."

   c.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he entered active duty this period on 7 December 1951; he was honorably released from active duty on 30 November 1957 in the rank of chief warrant officer two (CWO2), and he was transferred to the U.S. Army Reserve (USAR), Arizona Military District.

      (1)  At the time he had completed 5 years, 11 months, and 24 days of net service this period; 9 years, 4 months, and 26 days of other service; and
15 years, 4 months, and 20 days of total service for pay purposes. 

		(2)  Item 26 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) shows the Army of Occupation 


Medal with Japan Clasp, Army Good Conduct Medal, American Defense Service Medal, American Campaign Medal, World War II Victory Medal, Asiatic-Pacific Campaign Medal, Korean Service Medal, Combat Infantryman Badge, three Overseas Service Bars, United Nations Service Medal, National Defense Service Medal, and the Bronze Star Medal.

   d.  A DD Form 4 (Enlistment Record - Armed Forces of the United States) shows the applicant enlisted in the Regular Army for a period of 5 years on
21 January 1958 in the rank of sergeant.

   e.  A DD Form 257A (General Discharge Certificate) shows the applicant was discharged, in the rank of CWO2, from the USAR and Army of the United States under honorable conditions on 23 December 1959.

   f.  A Casual Detachment, U.S. Army Garrison, Fort Jay, Governors Island, NY, letter, dated 13 January 1960, shows the applicant's commander recommended the applicant appear before a Board of Officers, if appropriate, to determine whether further retention in the service or administrative separation from the U.S. Army was warranted under the provisions of Army Regulation
635-209 (Personnel Separations - Unsuitability).
   	(1)  The commander noted the applicant was tried by general court-martial for violation of Article 86 and sentenced as approved by the convening authority.  His sentence, in pertinent part, included confinement at hard labor.

   	(2)  The commander's reasons for his proposed action were that while in confinement the applicant's attitude toward the Army was one of contempt and distrust.  He noted efforts by the staff at Fort Jay, including the neuropsychiatric clinic and confinement facility, failed to alter the applicant's embittered attitude or dissuade him from discarding his years of honorable service.  The psychiatrist offered, "there is every probability, based upon this person's current mental status, that he will be a source of expense and waste both to the service and himself.  Further confinement seems inevitable."

   	(3)  The commander recommended that the separation authority approve the applicant's discharge under honorable conditions without further referral to a Board of Officers.

   g.  The applicant acknowledged that he had been advised of the basis for the contemplated separation action.  He was also advised that as a result of this action, a general discharge under honorable conditions may be issued to him.


   	(1)  He acknowledged that military legal counsel for consultation was available to assist him; however, he did not request counsel in his behalf.

   	(2)  He did not request that his case be heard by a Board of Officers and waived a hearing in his case.

   	(3)  He elected not to submit a statement in his own behalf.

   h.  On 14 January 1960, the separation authority approved the applicant's separation with a general discharge.

   i.  Headquarters, Fort Jay, Special Orders Number 12, dated 15 January 1960, show the applicant was released from active duty on 18 January 1960, under the provisions of Army Regulation 635-209, and issued a DD Form 214 and a DD Form 257A (General Discharge Certificate).

   j.  A DD Form 214, issued to the applicant at the time of his discharge, is not very legible.  It does show he was separated with a general discharge under the provisions of Army Regulation 635-209 and assigned separation program designator (SPN) 264 [Unsuitability, character and behavior disorders] in the grade E-1 with a date of rank of 11 September 1959.  It also shows he was in a non-pay status for 147 days from 15 October 1958 through 10 March 1959.

   k.  On 2 September 2010, a Master Sergeant (MSG) A----- B----, U.S. Army (Retired), provided a letter in support of the applicant's request.  The author states the applicant's sentence was the equivalent to a life sentence without the possibility of parole because a bad conduct discharge deprives one of the ability to have a meaningful and productive life.  He adds the applicant is now 90 years old, gravely ill, and living in a nursing home.

		(1)  MSG B---- states the applicant's conduct and efficiency for over
17 years of his service were excellent.  However, he acknowledges that the applicant's private life was a mess.  He also states that when the applicant went to work for Major G------ (i.e., shortly after the Army had been integrated), the applicant was given responsibilities intended for Soldiers of lesser rank.  He adds since the applicant had recently been discharged as a warrant officer due to a reduction in force, coupled with family problems, and then serving as a sergeant for a commander who frequently berated him, the applicant went AWOL.

		(2)  MSG B---- alleges that Major G------ thwarted the applicant's efforts to continue to serve in the Army and retire.  He adds that what the applicant's defense counsel suggested as punishment would have been more than just and fair; however, the applicant was denied due process.
7.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, and apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.  

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority 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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the U.S. Army Board of Review considered the entire record in the applicant's court-martial case, including the applicant's prior periods of honorable service, career progression, awards and commendations, along with the applicant's personal problems and matters related to his family at the time.  The board modified his sentence and, in pertinent part, reduced the applicant's dishonorable discharge to a bad conduct discharge.

2.  The evidence of record further shows that while the applicant was in confinement he displayed an embittered attitude and could not be dissuaded from carelessly discarding his prior years of honorable service.  The evidence of record also shows the applicant's commander recommended his separation from the Army with a general discharge under honorable conditions.  Accordingly, the separation authority approved the applicant's separation with a general discharge under honorable conditions.  Thus, the applicant's contention that his discharge was too harsh in light of his overall record of service is not supported by the evidence of record.  In view of the applicant's sentence to a bad conduct discharge, the separation authority, in fact, gave due consideration of the applicant's prior periods of honorable service when deciding the character of service of the applicant's discharge when he was discharged while in confinement.

3.  The evidence of record shows that during the applicant's period of military service under review (i.e., from 21 January 1958 through 18 January 1960), he was AWOL from 15 October 1958 through 10 March 1959 (i.e., nearly 5 months), and he was tried and convicted at a general court-martial.  In addition, he completed less than 2 years of his 5-year enlistment commitment.  Thus, the evidence shows that the applicant's quality of service during this period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  The applicant's post-service conduct of being a good citizen was considered; however, it is not a basis to warrant an upgrade of his discharge.

5.  The evidence of record, which includes the record of trial and evidence provided by the applicant, was carefully examined.  From that review there is no evidence of irregularity in the applicant's case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100012128



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ABCMR Record of Proceedings (cont)                                         AR20100012128



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