IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019545 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he received a general discharge under honorable conditions.

2.  He states his DD Form 214 appears to indicate he was discharged under other than honorable conditions.  He has two National Archives (NA) and Records Administration Forms 13038 (Certification of Military Service) Certifications of Military Service.  One shows he served in the Regular Army (RA) from 31 August 1954 to 3 June 1956 and received an honorable discharge to reenlist.  The second shows he served in the RA from 31 August to 27 November 1957 and received a general discharge under honorable conditions.

3.  He provides two NA Forms 13038 and his DD Form 214.

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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed most of his records were lost or destroyed in that fire; however, there is sufficient documentation available in his reconstructed NPRC file to fully and fairly consider this case.

3.  On 31 August 1954, the applicant enlisted in the RA.  The available records show he was honorably discharged on 3 June 1956 and he reenlisted for a period of 6 years on 4 June 1956.

4.  A Unit Punishment Record shows he received nonjudicial punishment (NJP) for:

* his uniform being unclean for the annual Inspector General inspection on 25 January 1956
* sleeping in a public place on 31 August 1957

5.  An Extract of Military Records of Previous Convictions shows he was convicted by a special court-martial on 26 September 1957 of violating a lawful general order and wrongfully having three and one-half cigarettes containing marijuana in his possession.

6.  On 21 October 1957, he was directed to appear before a board of officers to determine whether he should be retained in the U.S. Army.  He elected to be represented by military counsel and to call witnesses in his behalf.

7.  On 25 October 1957, a board of officers convened and found the applicant undesirable for the purpose of retention in the Army due to evidence of habits or traits or character manifested by drug addiction and misconduct.  The board recommended his discharge under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character) because of undesirable habits or traits of character and issuance of a DD Form 258A (Undesirable Discharge Certificate).

8.  On 27 November 1957, he was discharged in accordance with the board's recommendation.  His DD Form 214 shows his service was characterized as under other than honorable conditions.

9.  His record includes a letter from the NPRC Records Reconstruction Branch, dated 15 January 1991, informing him he had been erroneously issued an NA Form 13038 showing his service was terminated by "general discharge under honorable conditions."  He was issued a new NA Form 13038 showing his service was terminated "under other than honorable conditions" and he was asked to return the NA Form 13038 issued in error.  The letter further informed him that use of the erroneous form showing the incorrect type of separation would constitute fraud against the U.S. Government and could result in penalties against him.

10.  He provides two NA Forms 13038.  One shows he was honorably discharged on 3 June 1956 to reenlist on 4 June 1956.  The second shows his service was terminated by "general discharge under honorable conditions" on 27 November 1957.

11.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character.  The regulation stated that a recommendation for discharge because of undesirability would be made in the case of an enlisted person who:  (1) gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct; (2) possessed unclean habits, including repeated venereal infections; (3) repeatedly committed petty offenses not warranting trial by courts-martial; (4) was a habitual shirker; (5) was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service; or (6) demonstrated behavior, participated in activities, or associations which tended to show he was not reliable or trustworthy.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b, currently in effect, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has requested, in effect, an upgrade of the character of service shown on his DD Form 214 based on a document issued in error by NPRC long after he was discharged.  The evidence of record does not support his request.

2.  His separation for undesirable habits or traits of character was proper and equitable.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Based on his record of indiscipline, which includes his conviction by a special court-martial and two instances of NJP, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  The applicant is advised to destroy the erroneous NA Form 13038 in his possession showing he was separated by "General Discharge Under Honorable Conditions."  The document is invalid and he should note NPRC's warning that any use of the erroneous document will constitute fraud against the U.S. Government.  Further, a DD Form 214 is available in his record.  This is the document he must present when asked to verify his service.

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 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)                                         AR20110019545



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ABCMR Record of Proceedings (cont)                                         AR20110019545



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