IN THE CASE OF:	  

		BOARD DATE:  16 February 2012

		DOCKET NUMBER:  AR20110015955 


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 upgrade of his undesirable discharge to an honorable discharge.  

2.  He states the circumstances surrounding his discharge were unjust.  

3.  He provides:

* Self-authored statement
* Character reference
* Miami-Dade County Public Schools Course Schedule
* Test Report
* Individual Report
* Miami-Dade Police Department Arrest Record Search Results
* DA Form 24 (Service Record)
* DA Form 481 (Military Leave Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 37 (Report of Proceedings of Board of Officers)
* DA Form 20 (Enlisted Qualification Record)
* Statement of Enlistment
* Consent, Declaration of Parent or Legal Guardian Form
* DD Form 4 (Enlistment Record – United States) 
* Troop Education Individual Record



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.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  The reconstructed records contain photocopies of burned records.

3.  His DD Form 214 shows he was born on 10 January 1938.  He enlisted in the Regular Army on 31 January 1955 at the age of 17 with parental consent.  He arrived in Germany on 9 January 1956.

4.  His DA Form 24 shows he attained the temporary rank of private first class/
E-3 on 19 June 1956.  

5.  On 6 February 1956 he underwent a psychiatric examination and was diagnosed as having an emotional instability reaction, chronic, moderate, manifested by inability to adjust in any of the basic spheres.  

6.  A Unit Punishment Record shows on 3 May 1956, he failed to know General Orders after being directed to learn them.

7.  An Admission Report, dated 2 July 1956, shows he was admitted to the U.S. Army Hospital in Bremerhaven, Germany on 30 June 1956 for a stab wound over his sternum.  The report indicated the applicant was under the influence of intoxicants and was mentally sound at the time of the incident.   

8.  The applicant’s company commander requested the applicant appear before a board of officers for separation from the service under the provisions of Army Regulation 615-368 (Enlisted Personnel - Discharge - Unfitness).  The company commander stated the applicant demonstrated no pride in being a member of the Armed Forces, had constantly presented himself in a sloppy and untidy appearance, indifferent attitude to his superiors and was lackadaisical in the performance of all assigned duties.  On numerous occasions he had been corrected by the Commanding Officer, the First Sergeant, his platoon leader, and senior noncommissioned officers.  

9.  On 17 July 1956, a line of duty investigation found the applicant sustained an injury while engaging in a fight with another Soldier.  The applicant was the aggressor and his injury was proximately caused by both intentional misconduct and willful neglect on his part; his intemperate use of intoxicating liquor (admitted consumption of about a canteen cupful (16 ounces) of 86 alcoholic proof whiskey over a relatively short period of time); showed very poor judgment and was wrongful; he incited and activated a fight with a private.

10.  A DD Form 493 (Extract of Military Records of Previous Convictions), dated 26 July 1956, shows he was convicted by a summary court-martial on three separate occasions for:

* failing to go at the time prescribed to his appointed place of duty
* being disrespectful in language toward his superior noncommissioned officer who was then in the execution of his office
* assaulting another Soldier by pushing an M-1 Rifle against his chest

11.  On 7 August 1956, a board of officers convened in Bremerhaven, Germany and recommended the applicant be discharged from the service because of unfitness with an undesirable discharge.  The board proceedings indicated the applicant had demonstrated he was totally unfit for further retention in the military service for the reason of habits and traits of character manifested by anti-social and amoral trends; habitual misconduct; repeated petty offenses not warranting trial by court-martial; and habitual shirking.  

12.  On 10 August 1956, the convening authority approved the board of officers recommendations.  

13.  The applicant's discharge packet is not available.  However, his DD Form 214 shows he was discharged from the service on 30 August 1956 under the provisions of Army Regulation 635-208 by reason of habits or traits of character manifested by anti-social amoral trends with service characterized as under other than honorable conditions (undesirable).    



14.  He provided a self-authored statement in support of his claim and stated:

   a.  he enlisted in the Army at the age of 17 with his parents’ written consent; he enlisted because of the Montgomery GI Bill; he had uncles in the military who had great benefits; and he wanted to drive a truck.
   
   b.  he felt he was recruited at too early an age because he couldn’t read or understand the orders given to him most of the time.
   
   c.  Since his discharge, he has been a productive and successful individual both in his personal life and at work.  He has been a truck driver for over 17 years with the same company; he was married for 47 years to the same woman and his wife died from cancer in December 2009.  They had 7 children and 14 grandchildren.  
   
   d.  He registered at the South Dade Adult Center to get the education he missed and to learn to read.
   
   e.  He and his family have been active community and church members.  His life has been good, successful, honorable and productive.  

15.  He also provided a character reference from an individual who stated he has known the applicant for 30 years and has assisted him with various academic and home management needs.  The individual stated the applicant attended South Dade Adult Center and has been diligent in the completion of homework assignments.  He described the applicant as a fine, generous person and a dedicated family man.  

16.  He provided course schedules from the Miami-Dade Adult Center which show he was enrolled during the 2010 school year.  He tested for Reading, Math, Applied Math, and Language.  

17.  In a 23 June 2011 letter, the Miami-Dade Police Department indicated the applicant did not have a local record.  

18.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

19.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character.  Paragraph 2 of the regulation provided for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, drug addiction, pathological lying, or misconduct.  An undesirable discharge was normally considered appropriate.

20.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service and general aptitude.  Where a member has served faithfully and performed to the best of his or her ability, an honorable discharge certificate should be furnished.  

21.  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 contends the circumstances surrounding his discharge were unjust.  However, in the absence of evidence to the contrary, his discharge proceedings under the provisions of Army Regulation 635-208 for habits and traits of character are presumed to have been administratively correct and in conformance with applicable regulations.  

2.  The available service record shows the applicant was convicted by a summary court-martial on three separate occasions.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable or general discharge.

3.  His contentions in regard to his age at the time of enlistment were acknowledged.  Records show the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  

4.  His contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.


5.  His character reference was noted; however, it is not sufficiently mitigating to warrant relief in this case.

6.  He has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.

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)                                         AR20110015955





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ABCMR Record of Proceedings (cont)                                         AR20110015955



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