BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110019591 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s undesirable discharge be upgraded to an honorable discharge or a general discharge, under honorable conditions. 

2.  Counsel states the applicant was 17 years old at the time of his enlistment.  His undesirable discharge stemmed from one bad judgment, because of his youth.  According to the applicant, he was discharged because he and two other Soldiers ran out of money and had no gasoline in their vehicle to return to base. 

3.  Counsel adds that the applicant and the other Soldiers were afraid they would not be able to report back to base before their passes expired, so they attempted to take gasoline from a grounded airplane.  

4.  Counsel submits that the applicant, who is now 69 years of age, looks back to when he was 19 years old and fully recognizes the foolish mistake he has made and is truly sorry.  Throughout his life, the applicant continued to be a loyal and patriotic American through his actions.  

5.  Counsel presents his interpretation of the law as it applies to the discharge review process under Department of Defense (DOD) Instruction 133228:

	a.  A discharge is deemed improper if an error in discretion exists associated with the discharge at the time of issuance. 

   b.  In terms of the propriety of a discharge, a discharge shall be deemed proper unless, in the course of discharge review it is determined that an error of fact, law, procedure, or discretion existed at the time of issuance and that the rights of the applicant were prejudiced thereby.
   
   c.  The application submitted is based on equitable considerations and the applicant's post-service conduct.  There is no law or regulation which provides that an unfavorable discharge be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  
   
   d.  However, the Board is authorized to consider outstanding post-service factors in order to upgrade the characterization of a discharge, to the extent that such matters demonstrate previous in-service misconduct was an aberration and not indicative of the Soldier's overall character.
   
   e.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. 
   
   f.  Documentation to help support a post-service conduct upgrade includes but is not limited to a verifiable continuous employment record; marriage and children's birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other institutions; attending or completion of higher education (official transcripts), and documentation of a drug-free lifestyle.

6.  Counsel provides:

* A DA Form 24 (Service Record)
* The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Numerous letters of commendation and support

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 enlisted in the Regular Army on 29 September 1958 at the age of 17 years.  After completion of training, he served in military occupational specialty 670.00 (Aircraft Maintenance Crewman).  Private First Class/E-3 was the highest grade he attained while serving on active duty.

3.  His record contains a DD Form 789 (Unit Punishment Record).  This document shows he was charged with committing the following offenses for which he received nonjudicial punishment (NJP):

* Absent without leave (AWOL) from guard duty on 5 July 1959
* AWOL 4 hours on 10 August 1959
* Failure to repair (missed formation) on 30 March 1960

4.  The applicant’s DA Form 24 indicates he went AWOL from 18 January to 
18 February 1960.

5.  On 9 June 1960, he underwent a neuropsychiatric evaluation.  The examining psychiatrist noted the applicant had a number of AWOL offenses and had also been in trouble with civilian authorities.  Amongst his charges was one for larceny of gasoline from an airplane.  There was no history of alcoholism, criminality, or other medical disturbances in his family.  

6.  He was diagnosed as having an emotional instability reaction, which was manifested by poorly-controlled impulses.  The psychiatrist stated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He had no mental or physical disability sufficient to warrant separation from the service under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 

7.  The commander's initial recommendation for elimination is not available for review; however, a statement, dated 16 June 1960, shows the applicant acknowledged he had been counseled and advised of the basis for the pending separation action under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  He declined the opportunity to consult with counsel, waived a hearing of his case by a board of officers, and declined to submit a statement in his own behalf.

8.  On 30 June 1960, he was convicted by a special court-martial of leaving his post as a sentinel before being properly relieved and wrongfully appropriating a government vehicle, valued at $1,987.00.  The approved sentence was confinement at hard labor for 6 months, forfeiture of $55.00 for 6 months, and reduction to the grade of Recruit/E-1.

9.  On 28 June 1960, the applicant's immediate commander recommended he be discharged under the provisions of Army Regulation 635-208, for frequent incidents of a discreditable nature with civil and military authorities.  He noted that the applicant went AWOL on 18 January 1960 and was apprehended by civil authorities on 26 January 1960 for trespassing and larceny of gasoline from an airplane.  He was sentenced to 12 months civil confinement with 11 months suspended.  He also listed the applicant's previous offenses and NJPs as cited in the DD Form 789.  

10.  On 7 July 1960, the separation authority approved the applicant’s separation and directed that he be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade. 

11.  The unexecuted portion of the sentence to confinement at hard labor for 
6 months was remitted on 26 July 1960.

12.  On 29 July 1960, he was discharged under the provisions of Army Regulation 635-208 for unfitness, with an undesirable characterization of service.  He had completed 1 year, 7 months, and 24 days of creditable active service with 68 days of lost time due to AWOL and confinement.

13.  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. 

14.  A review of his military record does not indicate he received any special recognition or had any significant acts of valor. 

15.  Counsel submitted several letters of commendation and support from family members and friends.  These letters describe the applicant in the following manner:

* An exemplary American who would do anything to help others
* Trustworthy, loyal, hardworking, thoughtful, and honorable with a strong sense of morals and family values
* Having impeccable character
* Taking his brother-in-law and his family in, after their apartment complex burned down 
* Earnestly cared for his mother even though he had many other responsibilities
* A devoted father who worked hard to provide for his children and late wife
* A good caring grandfather who always provides for his grandchildren
* Caring for his wife during her final months instead of placing her in a nursing home
* Has conducted himself in an exemplary manner over the past 50 years, which is not indicative of his actions during his period of service in the Army

16.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  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. 

17.  Army Regulation 635-200 (Enlisted Active Duty Administrative Separations), 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.  

18.  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.  Counsel's arguments and the evidence presented were carefully considered.  

2.  The available evidence shows the applicant received NJP for going AWOL on two occasions, missing formations, and failing to remain on his post during guard duty.  In addition, he was charged with a criminal offense by civil authorities and was convicted by a special court-martial.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  His post-service conduct is noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly-issued discharge.

5.  In view of the foregoing, he is not entitled to an honorable or general discharge.

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)                                         AR20110019591





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ABCMR Record of Proceedings (cont)                                         AR20110019591



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