IN THE CASE OF:	  

		BOARD DATE:	    12 April 2012

		DOCKET NUMBER:  AR20110019232 


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 rescission of his discharge from the Army and upgrade of his undesirable discharge to a general discharge.

2.  The applicant states a material witness in his June 1956 court-martial gave false testimony to his defense counsel and his defense counsel failed to defend him to the best of his abilities.

3.  The applicant provides:

* Statement of Military Service
* 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 that the applicant's 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.

3.  One of the applicant's available DD Forms 214 (Report of Separation from the Armed Forces of the United States) shows he enlisted in the Regular Army (RA) on 22 March 1948.  This form also shows he held an infantry military occupational specialty (MOS) and his most significant duty assignment (i.e., his last duty assignment) was with Service Company, 511th Airborne Infantry Regiment, Fort Campbell, KY.

4.  He was honorably discharged on 23 January 1953 for the purpose of immediate reenlistment in the RA.  He completed 4 years, 10 months, and 2 days of creditable active military service this period, of which 8 months and 12 days was foreign service.  He was awarded the Parachutist and Glider Badges.

5.  His second available DD Form 214 shows he reenlisted in the Regular Army on 24 January 1953 and he held MOS 716.10 (Personnel Administrative Specialist).

6.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his available record contains:

	a.  Special Orders Number 41, issued by Headquarters, Transfer Point, Fort Benning, GA, dated 29 February 1956, ordering his discharge under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)), effective 2 March 1956, with an undesirable discharge.

	b.  a DD Form 214 that shows he was discharged on 2 March 1956 under the provisions of Army Regulation 615-368 with an undesirable discharge.  This form also shows he had 221 days of time lost.

	c.  TAGO (The Adjutant General Office) Form 166 (Statement of Military Service), dated 18 March 1959, that shows the applicant was convicted by 
court-martial on three occasions for being absent without leave (AWOL) on four occasions.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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.  The regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct.  Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct.  An undesirable discharge was normally considered appropriate.

9.  Army Regulation 615-368 also stated that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under Army Regulation 615-369 (Enlisted Personnel - Discharge - Inaptitude or Unsuitability)), without referral to another board, might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted.  As examples, such circumstances would apply where the cause of unfitness had been minor, relative to the length of efficient service or where there had been a definite effort at self control; or where an individual had, during his current period of service, distinguished himself by an act of heroism, which in itself reflected great credit on the individual and the military service.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the separation of enlisted personnel. 

	a.  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.  

	b.  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 rescinded and upgraded and the evidence he provided as well as his available service record was carefully considered.

2.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 2 March 1956 under the provisions of Army Regulation 615-368 with an undesirable discharge.  This form also shows he had 221 days of time lost.  A second form shows he was AWOL on four occasions and he was convicted by court-martial on three occasions.

3.  In the absence of evidence to the contrary, it appears the applicant had a history of misconduct that led his chain of command to recommend his separation.  It is presumed his administrative separation was accomplished in compliance with applicable regulations at the time, with no procedural errors which would tend to jeopardize his rights.  It is also presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review.  

4.  Based on his available record, his service appears not to have met the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110019232



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ABCMR Record of Proceedings (cont)                                         AR20110019232



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