BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110007939 


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 a general under honorable conditions discharge.

2.  He states that he was told at the time of his discharge that if he stayed out of trouble for six months his discharge would be changed to a general discharge. 

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 2 July 1958.

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 23 July 1957 for a 3-year term of enlistment.  He successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 410.00 (Ammunition Helper).  

3.  On 20 December 1957, he was convicted by a special court-martial of being absent without leave (AWOL) for the period 18 October 1957 through 6 November 1957.  His sentence consisted of a forfeiture of $50.00 for six months and confinement at hard labor for six months (suspended).

4.  On 18 February 1958, he was convicted by a summary court-martial of being AWOL for the period 13 January 1958 through 16 January 1958.  His sentence consisted of a forfeiture of $50.00.

5.  On 5 May 1958, the applicant underwent a mental evaluation by a military psychiatrist who determined that he showed a problem of increasing difficulty adjusting to the military and would not be an asset to the service.  The applicant was found to be mentally responsible, and was able to distinguish right from wrong and to adhere to the right.  

6.  The commander's elimination packet for separation under the provisions of Army Regulation 635-208 (Personnel Separations) for unfitness is unavailable.  However, evidence indicates the applicant requested military counsel to represent him before a board of officers.

7.  A DA Form 37 (Report of Proceedings of Board of Officers) shows a board of officers was held on 19 June 1958.  The board of officers recommended the applicant be discharged from the service because of undesirable habits or traits of character and that he be issued an undesirable discharge certificate.  

8.  On 26 June 1958, the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge.  

9.  On 2 July 1958, the applicant was separated under the provisions of Army Regulation 635-208.  His DD Form 214 shows in Item 13 (Character of Service) the entry "Under Other Than Honorable Conditions."  He had completed              5 months and 4 days of creditable active service with 188 days of lost time due to AWOL and confinement.

10.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character or demonstrating unfitness.

	a.  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.

	b.  Individuals would be discharged by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was told that after six months his discharge would be changed to a general discharge, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  In the absence of evidence to the contrary, it is presumed the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

3.  The applicant's records show that he was convicted by a special court-martial and summary court-martial of two instances of AWOL during his enlistment.  The applicant had completed 5 months and 4 days of creditable active service with 188 days of lost time due AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of 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)                                         AR20110007939





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ABCMR Record of Proceedings (cont)                                         AR20110007939



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