BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120004541 


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 an upgrade of his undesirable discharge (UD) to honorable.

2.  The applicant's states his character of service should have been honorable and defers to counsel.

3.  The applicant provides a supporting letter from counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's UD.

2.  Counsel states a review of the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) confirms he is a Korean War veteran who served in combat from 12 November 1953 to 13 May 1955.  Counsel claims the applicant, while being allowed to appear before a court-martial and make a statement, was advised by his military counsel not to do so.  Further, the applicant' military counsel made no comments on the applicant's behalf; the military judge ordered a reduction in grade to private/E-1 and a UD.

3.  Counsel further states The American Legion will not try and explain the applicant's actions, but only say he was not given the opportunity to clear his name.  Counsel states the applicant has been ineligible for home loan, education, and other benefits administered by the Department of Veterans Affairs (VA) for 56 years after his combat service in Korea.  Counsel claims that 56 years of living with a UD by a Soldier who served his country during the Korean War is punishment enough.

4.  Counsel provides no additional evidence.

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 record shows he was inducted into the Army of the United States on 12 November 1953.  His DD Form 230 (Service Record) shows he served in Korea from 7 May 1954 to 27 April 1955.  It also shows he earned the Korean Service Medal, United Nations Service Medal, and National Defense Service Medal.  His record documents no acts of valor or individual awards.

3.  The applicant's disciplinary history includes two summary court-martial convictions for violating Article 134 of the Uniform Code of Military Justice (UCMJ) by breaking restriction on 12 May 1954 and on 20 December 1954 for violating Article 92 of the UCMJ by failing to obey a lawful general regulation by being in an off limits area.  It also includes his acceptance of unit punishment on 27 June 1954 for being drunk and disorderly on 26 June 1954.  It further includes a special court-martial conviction on 2 March 1955 for violating the following articles of the UCMJ by committing the offenses indicated:

* Article 108 for damaging a military vehicle by driving recklessly on 26 December 1954
* Article 121 for wrongfully appropriating a government vehicle
* Article 86 for being absent without leave (AWOL) from 6 to 14 January 1955

4.  The applicant's disciplinary history also shows he accrued 114 days of lost time due to two separate periods of AWOL and a period of confinement between 3 April 1954 and 26 March 1955.

5.  The applicant's unit commander submitted a recommendation for the applicant's discharge under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness) by reason of unfitness based on the applicant's belligerent attitude, court-martial record, failure to meet the basic requirements of a Soldier, and negative attitude.

6.  On 31 March 1955, the applicant was notified that a board of officers would convene to consider the facts and circumstances surrounding the recommendation for his separation under the provisions of Army Regulation 
615-368.  The applicant was advised of his right to have counsel of his own selection and the opportunity to call witnesses in his own behalf.

7.  On 5 April 1955, a board of officers convened to consider the applicant's case with the applicant and his counsel present.  After considering the evidence of record and hearing witness testimony, the board of officers found the applicant gave evidence of unfitness within the meaning of Army Regulation 615-368, which rendered him undesirable for retention in the service.  The board of officers recommended the applicant's discharge from the service by reason of unfitness and issuance of a UD.

8.  On 15 April 1955, the separation authority approved the findings and recommendations of the board of officers and directed the applicant's discharge in accordance with those findings and recommendations.  On 13 May 1955, the applicant was discharged accordingly.  His DD Form 214 shows he was separated under the provisions of Army Regulation 615-368 by reason of unfitness (habits of character rendering retention in service undesirable).  He completed 1 year, 2 months, and 8 days of creditable active military service and accrued 114 days of lost time due to AWOL and confinement.

9.  There is no evidence of record indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  Army Regulation 615-368, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions.

11.  Army Regulation 635-200 (Active Duty Enlisted 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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 and counsel's contention that the applicant's discharge should be upgraded because he is a combat veteran and has suffered the impact of the UD long enough has been carefully considered.  However, these factors are not sufficiently mitigating to support an upgrade of his UD.  Although the applicant, through his counsel, now claims his previous counsel did not properly represent him, there is no evidence of record to support this assertion.

2.  The evidence of record confirms the applicant's separation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were protected throughout the separation process.

3.  The applicant's record does show he served in Korea between 7 May 1954 and 27 April 1955; however, the armistice was signed on 27 July 1953.  His record also confirms an extensive disciplinary history during this period which included three court-martial convictions and unit punishment, along with an 8-day period of AWOL and a 103-day period of confinement.  Based on his extensive disciplinary history, the applicant's record did not support the issuance of an honorable or general discharge by the separation authority at the time and does not support an upgrade at this late date.

4.  In view of the foregoing, there is an insufficient evidentiary basis to support granting the 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 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)                                         AR20120004541



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ABCMR Record of Proceedings (cont)                                         AR20120004541



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