IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110011981 


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.

2.  He states he was discharged for a pattern of petty offenses that did not warrant a court-martial.  At the time of his discharge, he had hoped for a second chance since he had fallen in with a bad crowd.  He has led a good life since his discharge and has been an upstanding member of his community for the past 60 years.

3.  He provides a self-authored statement and three character references.

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 complete military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the ABCMR to conduct a fair and impartial review of this case.

3.  The available records show he enlisted in the Regular Army on 22 October 1947 after having prior service in the Army National Guard,

4.  An extract of the company punishment record shows he committed the following offenses on the following dates:

* 5 February 1949 for displaying disorderly conduct
* 21 February 1949 for being off limits
* 2 March 1949 for being off limits
* 27 May 1949 for failing to repair
* 6 June 1949 for violating an order

5.  A certificate from a medical officer, dated 14 June 1949, certified that there was no physical or mental disease present which would preclude the applicant from being discharged under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Undesirable Habits or Traits of Character).

6.  Special Court-Martial Orders Number 137, dated 1 July 1949, issued by Headquarters, Kobe Quartermaster Depot, show he was found guilty of knowingly and willfully attempting to remove property of the U.S. Government valued at about $52.49.

7.  His discharge proceedings were not in the available record.  However, the Report of Proceedings by a Board of Officers contained in his record shows a board was convened on 29 July 1949 to determine whether he should be discharged under the provisions of Army Regulation 615-368.  The applicant appeared before the board with counsel and was afforded a full opportunity to cross examine witnesses, to present evidence on his behalf, to testify in person or submit a written statement, and to submit a brief.

8.  The transmittal of board proceedings indicates the board recommended and the separation authority approved the applicant's discharge under the provisions of Army Regulation 615-368.

9.  His WD AGO Form 53-59 (Enlisted Record and Report of Separation – Undesirable Discharge) shows he was discharged on 15 September 1949 for unfitness for repeatedly committing petty offenses not warranting a trial by court-martial under the provisions of Army Regulation 615-368.  He completed a total of 1 year, 8 months, and 27 days of creditable service with 57 days of lost time.  He was issued an Undesirable Discharge Certificate.

10.  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.

11.  The three supporting statements submitted by the applicant speak highly of his character and work ethic.  One author stated the applicant was always willing to lend a helping hand when needed.

12.  Army Regulation 615-368, in effect at the time, set forth the procedures and authority for the separation of enlisted personnel for unfitness.  Paragraph 1 provided that individuals who demonstrated they were totally unfit for further retention in the military service due to misconduct were subject to separation for unfitness.  The regulation provided that the individual's commander would report the facts to the next higher commander and recommend that the individual appear before a board of officers.  This board of officers would be convened by the commander exercising general court-martial authority jurisdiction.  The board of officers could recommend the individual's discharge for unfitness, discharge for unsuitability, or retention in the service.  When an individual was discharged for unfitness, he or she would be issued an Undesirable Discharge Certificate.

13.  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.

14.  Army Regulation 635-200, 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.  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.  Since the applicant's discharge processing packet was not available for review, the exact reason or reasons he was processed for discharge due to unfitness is unknown.  However, his WD AGO Form 53-59 shows his discharge was due to repeatedly committing petty offenses not warranting a trial by court-martial.  The reason cited is consistent with the extract of the company's punishment record that shows he committed five offenses within a 5-month period and was found guilty by a special court-martial.

2.  His argument that his discharge should be upgraded because of his good citizenship for the past 60 years was considered.  However, good post-service conduct alone is not sufficient justification to warrant the relief requested.

3.  The evidence of record shows he appeared with counsel before a board of officers and the board found he was undesirable for further retention in the military.  His entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special consideration.

4.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  In view 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 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)                                         AR20110011981



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ABCMR Record of Proceedings (cont)                                         AR20110011981



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