IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110019921 


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.

2.  He states he made a mistake after returning from the Korean War and has been living with the shame for decades.

3.  He provides:

* letters of appreciation
* community letters and newspaper articles showing his community involvement and commitment to volunteering 

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

3.  He enlisted in the Regular Army on 18 September 1950 at the age of 16 for a period of three years.  He received a minority discharge on 17 November 1950.  He reenlisted on 21 March 1952 for a period of 3 years.

4.  On 14 October 1952, the applicant was convicted by a special court-martial, contrary to his pleas, of being absent without leave (AWOL) from on or about 24 July to on or about 28 August 1952.  

5.  A DD Form 493 (Record of Previous Convictions) shows he was convicted by summary courts-martial of being AWOL from:

* on or about 2 December 1952 to 8 January 1953
* on or about 17 June to 22 June 1954

6.  On 27 September 1954, he was convicted by a special court-martial, contrary to his plea, of being AWOL from on or about 3 September 1954 to on or about 11 September 1954.

7.  On an undetermined date he was charged with failing to go at the time prescribed to his appointed place of duty on 19 June 1955.

8.  On 12 July 1955, a Board of Officers determined the applicant was unsuitable for military service because of lack of ability and interest and was unsatisfactory in the performance of his duties because of home conflicts.  The board recommended he be separated from the service immediately and given an undesirable discharge. 

9.  His DD Form 214 shows he was discharged from active duty on 22 July 1955 under the provisions of Army Regulation 615-368 for unfitness.  He completed 2 years, 8 months, and 6 days of active military service with 295 days of time lost.

10.  He provided newspaper articles showing he was involved in volunteer work with children's programs with the Cosmopolitan Club and other organizations.

11.  On 9 December 1955, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge.


12.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record shows he was twice convicted by special courts-martial and twice convicted by summary courts-martial for being AWOL.  He had 295 days of time lost.  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.  

2.  He contends his discharge should be upgraded because of his community service.  However, 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.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's record of military service for this period.

4.  Based on the foregoing, there is an insufficient basis upon which to upgrade the applicant's discharge to an honorable discharge or to a 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)                                         AR20110019921



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ABCMR Record of Proceedings (cont)                                         AR20110019921



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