IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110015347 


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 entered the military at age 17 and was sent to Korea.  He maintains that while he was in Korea, he was placed on a 90mm gun crew in combat.  He adds that he finished his tour in Korea honorably.  He states he came home on leave and just could not go back.  He offers that today they would likely call his symptoms post traumatic stress disorder (PTSD), but at the time he was simply given an undesirable discharge.

3.  The applicant provides his Certification of Military Service.

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 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 Board to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record.

3.  Records available show the applicant was born on 19 January 1935 and he enlisted in the Regular Army on 1 February 1952 for a period of 3 years.  Based on his date of birth and date of entry into active service, he was 17 years of age when he entered into active service.

4.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, documents contained his record show the following:

	a.  Summary Court-Martial Order Number 138, date unknown, shows the applicant was found guilty of failing to go at the time prescribed to his appointed place of duty on 16 January 1953.

	b.  Special Court-Martial Order Number 18, dated 19 June 1953, shows he was found guilty of the following charges and specifications as follows:

* Charge I, Specification 1: absent without leave (AWOL) from 2200 hours 1 April 1953 to 2400 hours 1 April 1953
* Charge 2, Specification 1: entered an off-limits Korean home
* Charge 2, Specification 2: violation of a general regulation by transferring  Military Payment Certificates (MPC) to a Korean 
* Charge 3, Specification: stealing a MPC of a $10.00 value
* Charge 4, Specification 1: unlawfully impersonate an agent of the Army
* Charge 4, Specification 2: receiving a stolen MPC of a $4.00 value

   c.  Special Court-Martial Order Number 382, dated 3 May 1954, shows the applicant was found guilty of being AWOL from 23 March 1954 to 9 April 1954.
   
5.  On 18 May 1954, a board of officers was convened to determine whether or not the applicant should be discharged prior to expiration term of service because of traits of character manifested by excessive courts-martial under the provisions of Army Regulation 615-368 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge).  The applicant appeared before the board and he was advised by the president of the board of his rights.  He stated that he 

did not desire a copy of the board proceedings, did not desire counsel, and did not wish to call any witnesses in his behalf.  
   
   a.  He elected to make a statement in which he said that he could not take orders.  He added he had been picked on at home and enlisted in the Army to get away from it and then found that he had to follow orders in the Army.  He said he resented being given orders and went AWOL to get away from it.  He further stated that he felt he did not belong in the Army.  

   b.  The board found the applicant unfit for the service because of undesirable traits of character, as evidenced by repeated violations of military discipline and moral standards.  On 25 May 1954, the board of officers' findings were approved.

6.  His DD Form 214 shows he was discharged on 9 June 1954 under the provisions of Army Regulation 615-368.  He was furnished an Undesirable Discharge Certificate.  He was credited with completing 2 years, 2 months, and
7 days of active service.

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

8.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of undesirable habits of character manifested by misconduct.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), currently in effect, governs the policies and procedures for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 argues, in effect, that his discharge should be upgraded because his indiscipline was based on symptoms associated with PTSD.  There is no evidence and he has not provided any evidence to show he had symptoms associated with PTSD, or that such symptoms caused his indiscipline. 

2.  Additionally, he argues, in effect, that his age led to his indiscipline.  However, the records show he was 17 years of age at the time of his enlistment and
19 years old at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

3.  Although a complete separation packet is not contained in the applicant's available file, the evidence of record shows he appeared before a board of officers and waived his right to counsel.  The board found he was undesirable for further retention in the military service because of undesirable traits of character, as evidenced by repeated violations of military discipline and moral standards. His entire record of service was considered.  

4.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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 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)                                         AR20110015347





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ABCMR Record of Proceedings (cont)                                         AR20110015347



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