IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110018576 


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, the sister of a deceased former service member (FSM), request upgrade of her brother's undesirable discharge.

2.  The applicant states she wants to obtain a grave marker for her brother's grave.

3.  The applicant provides:

* the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* the FSM's Florida Certificate of Death
* a self-authored letter to her Member of Congress, dated 29 July 2011
* further correspondence to the Member of Congress, dated 9 August 2011
* an Department of Veterans Affairs (VA) internet information sheet concerning eligibility requirements for a headstone or marker

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 FSM, at 17 years of age, enlisted in the Regular Army for 3 years with the consent of his mother.  He entered on active duty on 19 May 1958.  He was trained as a switchboard operator and sent to Korea for his first permanent duty assignment.

3.  The FSM's conduct and efficiency ratings were excellent during his first
11 months of service, then fluctuated between good and unsatisfactory for the remainder of his service.

4.  The FSM's records contain a DA Form 24 (Record of Court-Martial Conviction).  It shows he was tried by a:

* Summary Court-Martial on 20 September 1960 for violating a lawful general regulation on 17 August 1960
* Special Court-Martial on 20 February 1961 for being disrespectful in language toward a sergeant first class (SFC)/E-6 on 8 February 1961
* Special Court-Martial on 15 March 1961 for loitering while posted as a sentinel on 23 February 1961

5.  On 15 January 1960, the FSM's commanding officer referred him to the Psychiatric Clinic for evaluation because of his behavior.  The psychiatrist:

* diagnosed him as having a passive-aggressive reaction, chronic, moderate, manifested by resentment, irritability, feelings of unfairness and being picked on, over-emphasis on justice and resulting occasional attitudes of obstructionism
* acknowledged that statistically such individuals would never become successful Soldiers and should be separated, but preferred not to formally recommend administrative separation

6.  The FSM's administrative separation packet is not available; however, his
DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness) with a separation program number (SPN) of 28B (for unfitness, frequent involvement incidents of a 


discreditable nature with civil or military authorities).  He was issued an Undesirable Discharge Certificate.  He completed 2 years, 9 months, and
27 days of total active service.  It also shows he had 48 days of time lost from
15 March 1961 through 1 May 1961 as a result of his Special Court-Martial sentence adjudged on 15 March 1961.

7.  There is no record the FSM petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge during that board's 15-year statute of limitations.

8.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides guidance on characterization of service and states in:

	a.  Paragraph 1-8d(1), an honorable discharge is a separation from the Army 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.

	b.  Paragraph 1-8e(1), 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.

	c.  Paragraph 1-8f(1), an undesirable discharge is an administrative separation from the Army under conditions other than honorable.  It may be issued for unfitness, misconduct, homosexuality, or for security reasons.


DISCUSSION AND CONCLUSIONS:

1.  The FSM started out as a good Soldier, but once he finished his training and arrived at his first duty station, he fell into a routine of challenging authority and violating rules and regulations.  His record shows he was convicted by a summary and two special courts-martial.

2.  The FSM's administrative separation is presumed to have been accomplished in compliance with applicable regulations, with no procedural errors which would tend to have jeopardized his rights.

3.  Given his service record, the FSM's undesirable discharge under conditions other than honorable was appropriate.  The applicant's desire to qualify the FSM for a VA grave marker is understood; however, the FSM's discharge and characterization of service was appropriate at the time.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110018576



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ABCMR Record of Proceedings (cont)                                         AR20110018576



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