IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016887 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states the character of his discharge is inequitable because it was based on a few isolated incidents in his last year of service.  He served in Austria for 2 years, 5 months, and 13 days and his 2 years of good service were not taken into consideration for the characterization of his service.

3.  The applicant provides copies of four letters from Congressional personnel, a letter of appreciation for his jury duty related to his post-service citizenship, and letters of support from his stepson and brother-in-law.

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 or lost in the fire at the National Personnel Records Center in 1973.  Some of the recovered documents have illegible entries; 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 for 3 years on 20 August 1951.

4.  The applicant departed the continental United States on 8 February 1952 for assignment to the 350th Infantry Regiment in Austria.  He returned to the United States on 20 July 1954.

5.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows:

* 17 October 1952, for being in an off-limits establishment 
* 26 November 1952, for being disrespectful toward a noncommissioned officer and failing to obey a lawful order
* 13 March 1953, for being off limits and without an authorized pass

6.  On 9 September 1952, a summary court-martial found the applicant guilty of carrying a concealed weapon on 7 August 1952.  He was sentenced to a forfeiture of $45.00 and 30 days of hard labor.  The court-martial convening authority approved the findings and sentence on 9 September 1952.

7.  On 13 December 1952, a summary court-martial found the applicant guilty of being drunk and violating of a lawful general order.  He was sentenced to a forfeiture of $30.00 and restriction to the company area for 30 days.  The court-martial convening authority approved the findings and sentence on 15 December 1952.

8.  On 12 February 1953, a summary court-martial found the applicant guilty of being drunk on duty as a truck driver and destruction of government property.  He was sentenced to forfeiture of $55.00 and confinement for 1 month.  The court-martial convening authority approved the findings and sentence on 13 February 1953.

9.  On 5 August 1953, a special court-martial found the applicant guilty of wrongful appropriation of a 2 1/2 ton government truck, operating the truck in a reckless manner (speeding, weaving, and improper passing), and breaking arrest.  He was sentenced to confinement for 6 months and a bad conduct discharge.  On 14 August 1953, the court-martial convening authority approved the findings of guilty, but approved only the confinement portion of the sentence.

10.  On 8 February 1954, a special court-martial found the applicant guilty of wrongful appropriation of a government truck.  He was sentenced to forfeiture of $50.00 pay per month for 6 months and confinement for 6 months.  The court-martial convening authority approved the findings and sentence on 10 February 1954.

11.  On 10 June 1954, the applicant appeared with counsel before a board of officers convened to determine if he should be separated prior to the expiration of his enlistment.  The board determined the evidence presented showed the applicant had habits or traits of character which served to render his retention in the service undesirable and recommended he be discharged under Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness) for unfitness.  The recommendation was based principally on his two special courts-martial, three summary courts-martial, three nonjudicial punishments, and 2 days of absence without leave (AWOL).  [There is no record of punishment, if any, given for the period of AWOL.]

12.  The discharge authority approved the recommendations and directed the applicant be discharged with an undesirable discharge.

13.  The applicant was discharged under Army Regulation 615-368 for unfitness on 23 July 1954.  His service covered a period of for 2 years, 11 months, and 4 days of which 1 year, 11 months, and 28 days was creditable service and 336 days was lost time.  He is shown to have served overseas for a period of 2 years, 5 months, and 13 days.

14.  The documentation provided by the applicant principally relates to correspondence with members of Congress related to his and their positions on various issues.  Other than voicing opinions, no other actions are noted.

15.  There is no indication the applicant applied to the Army Discharge Review Board.

16.  Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included misconduct, repeated petty offenses, and undesirable habits or traits of character.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical, or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7b, states that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the character of his discharge is inequitable because it was based on a few isolated incidents in his last year of service.  He served in Austria for 2 years, 5 months, and 13 days and his 2 years of good service were not taken into consideration for the characterization of his service.

2.  The applicant's recorded misconduct commenced on 7 August 1952, just shy of a year after his enlistment, with the first of five courts-martial.

3.  In addition to being court-martialed five times, with one sentence recommendation for a bad conduct discharge, the applicant also received nonjudicial punishment on three occasions.

4.  These facts belie his contentions that he had 2 years of good service, that the discharge was inequitable, and that there were a "few isolated" incidents in the last year of his service.

5.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of his discharge is commensurate with the applicant's overall record of military service.

6.  The documentation of the applicant's interest in legislative matters is commendable; however, it is neither so meritorious nor of such a nature as to mitigate the serious misconduct that resulted in his discharge.

7.  Based on the above facts and findings, there is insufficient evidence to warrant an upgrade of the character of the applicant's 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 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)                                         AR20100016887



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ABCMR Record of Proceedings (cont)                                         AR20100016887



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