IN THE CASE OF:	  

		BOARD DATE:  16 February 2012

		DOCKET NUMBER:  AR20110015318 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states:

* He came from an abusive family and he endured various challenges growing up
* He joined the Army at a young age and found a sense of belonging in the Army
* He considers himself a good Soldier
* He got caught up with another Soldier and a civilian who robbed a civilian establishment

3.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 11 December 1951.

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 DD Form 4 (Enlistment Record - U.S. Army) as well as his "Consent Agreement" form show he was born on 21 May 1933; however, various other documents in his service record show he was born on 21 May 1935.  He enlisted in the Regular Army at 16 (or possibly 18) years of age on 2 May 1951.  He was assigned to Company H, 10th Infantry Regiment, 5th Infantry Division, Indiantown Gap, PA.

3.  Shortly after his enlistment, he departed his unit in an absent without leave (AWOL) status on 10 June 1951.  He returned to military control on 20 June 1951.  However, on 9 July 1951, he again departed his unit in an AWOL status.  He returned to military control on 2 August 1951.  

4.  On 17 August 1951, he was convicted by a special court-martial of two specifications of being AWOL from 10 to 20 June and 9 to 30 July 1951 and one specification of possessing a false pass.  The Court sentenced him to confinement at hard labor for 2 months and a forfeiture of $50.00 pay per month for 2 months.  The approving authority approved his sentence on 18 September 1951.

5.  On 16 November 1951, he was convicted by a summary court-martial of two specifications of AWOL from 18 to 22 October 1951 and 23 October to 8 November 1951 and one specification of breaking restriction.  The Court sentenced him to a forfeiture of $50.00 pay and confinement at hard labor for 
30 days.

6.  He was honorably discharged for minority on 11 December 1951.  His 
DD Form 214 for this period of service shows he completed 5 months and 24 days of creditable active service and he had 46 days of lost time under the Manual of Courts-Martial.

7.  He again enlisted in the Regular Army on 16 May 1952.  His DD Form 4 for this period of service shows he was born on 21 March 1935.  However, shortly after his enlistment, he departed his unit in an absent without leave (AWOL) status on 6 June 1952.  He returned to military control on 13 July 1952.

8.  While AWOL, he was arrested by civil authorities for the civilian offense of burglary.  


9.  On 20 August 1952, he was convicted by a special court-martial of one specification of being AWOL from 6 June to 13 July 1952.  The Court sentenced him to confinement at hard labor for 3 months and a forfeiture of $55.00 pay per month for 4 months.  His sentence was approved on 18 September 1952.

10.  On 19 March 1953, he was convicted by a special court-martial of one specification of AWOL from 7 January to 4 March 1953.  The Court sentenced him to confinement at hard labor for 5 months and a forfeiture of $55.00 per month for 6 months.  His sentence was approved on 1 April 1953.

11.  He departed continental United States (CONUS) on 28 April 1953 and arrived in Japan on 16 May 1953.  He departed Japan on 27 May 1953 and arrived in Korea on 28 May 1953.  He departed Korea on 28 July 1954 and arrived back in CONUS on 9 August 1954.

12.  He was awarded or authorized the:

* National Defense Service Medal
* United Nations Service Medal
* Republic of Korea Presidential Unit Citation
* Combat Infantryman Badge
* Korean Service Medal with a bronze service star

13.  On 25 July 1955, he was turned over to civil authorities at their request and he was held on suspicion of armed robbery.  He was later convicted by the civil court of robbery by intimidation.  The civil court sentenced him to imprisonment for 5 to 10 years.

14.  The complete separation packet is not available for review with this case.  However, his service records show on 1 September 1955, the Commanding General, Headquarters, Infantry Center, Fort Benning, GA, ordered the applicant discharged under the provisions of section IV, Army Regulation 615-366 (Enlisted Personnel Discharges) by reason of civil conviction with the issuance of an Undesirable Discharge Certificate.

15.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 615-366 on 14 September 1955 by reason of conviction by civil court. He was issued an Undesirable Discharge Certificate.  He completed 2 years, 5 months, and 19 days of creditable active service during this period and he had 314 days of lost time.  

16.  On 13 November 1962, the Army Discharge Review Board denied his petition for an upgrade of his discharge.
17.  Army Regulation 615-366, in effect at the time, set forth the authority for the separation of enlisted personnel of the Army.  Section IV provided policies and procedures for the separation of a member due to a conviction by a civil court.  It stated, in pertinent part, that the separation authority could order the discharge of members who were initially convicted by a civil court.  An undesirable discharge was normally considered appropriate for members separated under this provision of the regulation.  

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7a, in pertinent part, states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered, but was found to be without merit.

2.  The evidence of record shows he had an extensive history of misconduct as evidenced by his multiple instances of courts-martial, habitual AWOL, and undesirable military traits and habits.  His misconduct culminated with his felony and resulting conviction by civil court.  Accordingly, his chain of command initiated discharge action against him.

3.  His administrative separation appears to have been accomplished in compliance with applicable regulations at the time with no procedural errors which would tend to jeopardize his rights.  The separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review.  There is neither an error nor an injustice.

4.  The applicant was 16 or 18 years of age when he first enlisted.  He was 17 or 19 years of age when he enlisted the second time.  He was over 20 years of age when he committed his felony/robbery.  Regardless, there is no evidence he was any less mature than other Soldiers who successfully completed their service. 

5.  Based on his extensive history of misconduct the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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)                                         AR20110015318



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ABCMR Record of Proceedings (cont)                                         AR20110015318



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