IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100017363 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he was assigned to Company B, 503rd Infantry,
82nd Airborne Division at Fort Bragg, NC.

   a.  He states his first sergeant (1SG) ordered him to get a haircut and he did. However, when he returned to his unit, the 1SG ordered him to go back to the barber shop to get his hair cut, again.

   b.  Upon returning to his unit the second time, the 1SG escorted the applicant to a room in the barracks where a noncommissioned officer (NCO) was holding hair clippers in his hand.  The applicant states he commented to the 1SG that the NCO was not a qualified barber.
   
   c.  He states, in effect, the 1SG told him to sit down in a chair; however, the applicant refused and the 1SG attempted to push him down into the chair.  The applicant states he reacted instinctively by putting his arms up in a defensive position, and his hand accidentally made contact with the 1SG by striking him on the chin.  Shortly thereafter two military police arrived, arrested him, and took him to the stockade where he stayed for 14 days.  He was charged with disobeying a lawful order and issued an undesirable discharge.
   
   
   d.  He states he then had to face the embarrassment of his dad.  He also states his discharge from the Army adversely affected his personal and business opportunities.  He adds that he has suffered 52 years of mental anguish due to his unwarranted discharge and respectfully requests an upgrade of his discharge.

3.  The applicant provides no additional documentary evidence 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 for a period of 3 years on 
19 September 1957.  Upon completion of training he was awarded military occupational specialty 111.10 (Light Weapons Infantryman) and assigned to the 503rd Infantry, 82nd Airborne Division, Fort Bragg.

3.  Headquarters, Second Airborne Battle Group, 503rd Infantry, Fort Bragg, Special Court-Martial Order Number 180, dated 8 December 1958, shows the applicant was tried at a special court-martial.

   a.  He pled guilty to and he was found guilty of Charge I and the specification of failing to go to his appointed place of duty (command reveille) at the time prescribed on 29 November 1958,
   
   b.  He pled not guilty to and he was found guilty of Charge II and the specification of having received a lawful order from the 1SG, his superior NCO, to get a haircut, he willfully disobeyed the order on 29 November 1958.

   c.  On 8 December 1958, he was sentenced to be confined at hard labor for a period of 6 months and a forfeiture of $55.00 pay for 6 months.
   
   d.  On 8 December 1958, the convening authority approved only so much of the sentence that provided for confinement at hard labor for a period of 3 months, a forfeiture of $55.00 pay for 3 months, and executed the sentence.

4.  On 12 May 1959, the applicant's company commander requested that the applicant undergo a psychiatric examination due to pending board action under the provisions of Army Regulation 635-208 (Separation of Enlisted Personnel).

   a.  The applicant was evaluated by a psychiatrist at the Mental Hygiene Consultation Service, Fort Bragg. 
   
   b.  The psychiatrist indicated, "[t]here is no evidence that a psychiatric diagnosis is warranted."

   c.  He stated, "[i]t is felt that further efforts at rehabilitation in this case are impractical.  Psychiatric clearance is given for whatever administrative action is deemed appropriate by command."

5.  On 12 May 1959, the applicant's company commander recommend that the applicant be required to appear before a board of officers convened under the provisions of Army Regulation 635-208 to determine whether or not he should be discharged prior to the expiration of his term of service for unfitness based on being a habitual shirker.  The company commander noted the applicant was repeatedly counseled by him and NCOs in the applicant's chain of supervision and that the applicant was serving a sentence in the stockade.

6.  On 13 May 1959, the applicant's company commander preferred court-martial charges against the applicant for violation of the Uniform Code of Military Justice, Article 86, for being absent without leave (AWOL) from 4 May to 10 May 1959.

   a.  On 13 May 1959, at a Summary Court-Martial at Headquarters, Second Airborne Battle Group, 503rd Infantry, Fort Bragg, the applicant pled not guilty and he was found guilty of the charge and specification of being AWOL.

   b.  He was sentenced to be confined at hard labor for 30 days and to a forfeiture of $57.00 pay.

   c.  On 13 May 1959, the convening authority approved the sentence.

7.  On 30 May 1959, the Commander, 503th Infantry, recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.

8.  Headquarters, 82nd Airborne Division, Fort Bragg, NC, letter, dated 2 June 1959, Subject:  Discharge Under the Provisions of Army Regulation 635-208, shows the applicant's commander was notified that the applicant's discharge from the service was approved and he was to be issued an Undesirable Discharge Certificate.  In addition, the unexecuted portions of the applicant's court-martial sentences were remitted with his separation from the service.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 18 June 1959 in accordance with Army Regulation 635-208 with an Undesirable Discharge Certificate.  At the time he had completed 1 year, 7 months, and 7 days of net active service this period.  Item 32 (Remarks) shows he had a total of 54 days of lost time.

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

11.  Army Regulation 635-208, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character.  An individual was subject to separation under the provisions of this regulation when it was determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a Soldier discharged for unfitness was normally furnished an Undesirable Discharge Certificate.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 3, 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.

	b.  Chapter 3, paragraph 7b, provides that an under honorable conditions discharge 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 contends his undesirable discharge should be upgraded because he was unjustly accused and convicted of disobeying an order.

2.  The evidence of record shows, in pertinent part, that the applicant was found guilty of willfully disobeying a lawful order (i.e., to get a haircut).  However, the applicant's conviction for this offense by special court-martial on 8 December 1958 did not result in his discharge.  Thus, the evidence of record refutes the applicant's contention that this conviction led to his discharge.

3.  In the absence of evidence to the contrary, it is concluded that the applicant's separation under the provisions of Army Regulation 635-208 for unfitness was proper and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the characterization of service directed was appropriate and equitable.

4.  The evidence of record shows the applicant was convicted at a special court-martial and also at a summary court-martial.  In addition, he had a total of         54 days of lost time.  These are clear and demonstrable reasons which justify a less than fully honorable discharge.  Therefore, it is concluded that the applicant's overall quality of service did not meet the standards of acceptable conduct and performance for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100017363



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ABCMR Record of Proceedings (cont)                                         AR20100017363



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