IN THE CASE OF:	  

		BOARD DATE:	    24 April 2012

		DOCKET NUMBER:  AR20110020499 

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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect:

* he does not believe the infractions were bad enough to warrant an undesirable discharge
* his father passed away in July 1949
* he was stationed in Germany, the Red Cross found him, and he was sent home but his father had been buried by the time he got there
* he stayed at home 30 days and returned to Germany
* a few months later his problems started
* he was very depressed and he started drinking
* he was involved in some incidents when he was out drinking and he missed bed check
* he was caught in an off limits areas a couple of times
* he was put on restriction
* he believes his bad behavior was due to depression as a result of his father's death but no one understood this type of behavior in those days
* if these things happened today he believes trained people would detect the symptoms and he would receive help instead of receiving an undesirable discharge  



3.  The applicant provides:

* Personal statement
* DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States)
* DD Form 214 (Report of Separation from the Armed Forces of the United States)

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 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 to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army on 8 July 1948 for a period of 3 years.  He served as a light weapons infantryman in Germany for 1 year, 9 months, and 10 days.

4.  The facts and circumstances surrounding his discharge are not contained in the available records.  However, his Army Discharge Review Board (ADRB) proceedings indicate:

	a.  Between November 1949 and July 1950, he received three summary court-martial convictions for disorderly conduct, violating a regulation (entering an off limits area), and breaking restriction.

	b.  Between April 1950 and July 1950, he received three nonjudicial punishments for being absent without leave, disorderly conduct, and missing bed check.   
	c.  On 20 July 1950, his commanding officer requested a board of officers be convened to determine whether or not the applicant should be discharged prior to his expiration term of service date.

	d.  On 21 July 1950, he underwent a psychiatric evaluation and no complaints or symptoms were noted.  The psychiatrist determined the applicant was mentally competent.  

	e.  On 30 August 1950, a board of officers convened.  The board recommended the applicant be discharged under the provisions of Army Regulation 615-368 for unfitness due to evidence of habits and traits of character and that he receive an undesirable discharge.

	f.  On 15 September 1950, the separation authority approved the recommendation.   

5.  On 19 October 1950, he was discharged under the provisions of Army Regulation 615-368 for unfitness.  He had completed 2 years, 1 month, and 
23 days of creditable service with 49 days of lost time. 

6.  On 13 November 1962, the ADRB conducted a rehearing and denied his request for an honorable discharge.

7.  There is no evidence which shows he was diagnosed with alcohol abuse or dependency prior to discharge.

8.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  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.  The regulation also provided that when discharged because of unfitness, an undesirable discharge would be furnished.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.  The applicant's contention pertaining to depression was noted.  However, no evidence shows he was having mental problems in 1950 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.  Medical evidence shows he underwent a psychiatric evaluation on 21 July 1950 and the psychiatrist determined he was mentally competent.  In addition, no complaints or symptoms were noted.      

2.  He also contends he had a drinking problem.  However, there is no evidence which shows he was diagnosed with alcohol abuse or dependency.

3.  In the absence of evidence to the contrary, it must be presumed the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.

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

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)                                         AR20110020499



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ABCMR Record of Proceedings (cont)                                         AR20110020499



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