IN THE CASE OF:	 

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120004845 


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, in effect, an upgrade of his undesirable discharge (UD).

2.  The applicant states:

   a.  He was found guilty by a special court-martial and his confinement was suspended.  The company commander was not happy with him and 2 weeks later he was shipped back to the United States.  Major General Mxxxx restored all of his rights.  However, when he arrived at Fort Dix, NJ, he was advised that his paperwork had not been received from the general. 
   
   b.  When he signed his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) it reflected "Honorable Conditions" the "Under Other Than" was added later.  It took him 40 years to find General Mxxxx’s letter (he is referring to Special Court-Martial Order Number 31, dated 12 December 1959).  Most of his records were destroyed in the St. Louis fire.  

3.  The applicant provides:

* Special Court-Martial Orders Number 31, dated 9 November and 12 December 1959
* 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 military record shows he enlisted in the Regular Army in pay grade E-1, on 8 December 1958, for 3 years.  He completed training and was awarded military occupational specialty 640 (Light Vehicle Driver).  He was advanced to pay grade E-2 on 8 April 1959.  

3.  On 4 June 1959, he was convicted by a special court-martial of one specification of absenting himself from his unit from 4 to 21 May 1959.  He was sentenced to confinement at hard labor for 1 month, a reduction to pay grade 
E-1, and a forfeiture of $55.00 pay for 3 months.  

4.  On 5 June 1959, the convening authority approved the sentence to confinement at hard labor for 1 month, reduction to pay grade E-1, and a forfeiture of $28.00 pay for 3 months and ordered it duly executed.  Accordingly, he was reduced to pay grade E-1 on 5 June 1959.

5.  On 11 June 1959, the convening authority suspended the unexecuted portion of the sentence to confinement at hard labor until he departed for overseas or until 10 July 1959 (whichever came first).  

6.  He arrived in Germany on 27 June 1959.  He was again advanced to pay grade E-2 on 5 September 1959.

7.  On 11 September 1959, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company A, 20th Transportation Battalion.  He was charged with one specification of being disorderly in uniform in a public place.



8.  On 15 September 1959, he was convicted by a summary court-martial of one specification of being disorderly in uniform in a public place on 7 September 1959.  He was sentenced to 30 days restriction.  The convening authority approved the sentence on 16 September 1959.

9.  On 1 October 1959, he was convicted by a summary court-martial of one specification of failing to go to his appointed place of duty on 29 September 1959.  He was sentenced to a forfeiture of $25.00 pay for 1 month and 30 days of restriction.  The convening authority approved the sentence on 2 October 1959.

10.  On 6 November 1959, he was convicted by a special court-martial of one specification of wrongfully appropriating an M-2 Carbine Rifle (.30 Caliber) property of the U.S. Government on 17 September 1959.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of $25.00 pay for 6 months, and a reduction to pay grade E-1.

11.  On 20 November 1959, the applicant underwent a psychiatric examination in view of consideration for separation from the service.  No disorder was noted.  He was found to be capable of understanding and participating in board proceedings.  The evaluating psychiatrist noted the applicant was well aware of his present predicament and that he made a poorly-chosen decision to seek separation from the service in any way possible.  Although the evaluation revealed impulsive and immature behavior it was not felt that it was disabling to the extent that the applicant could not perform military duty.

12.  On 2 December 1959, the applicant's company commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) with a UD. The company commander stated the recommendation was due to the applicant's repeated acts of misconduct and his unsatisfactory attitude toward military life.  The applicant had a record of 4 prior convictions, 17 days of being absent without leave (AWOL), and 16 days confinement.  The period of time he had known the applicant, the applicant always displayed a poor attitude.  When counseled on several occasions he would display an "I don't care attitude."

13.  On 7 December 1959, after consulting with counsel, the applicant acknowledged the separation recommendation under the provisions of Army Regulation 635-208.  He waived his rights and elected not to submit a statement in his own behalf.  

14.  On 10 December 1959, the applicant's battalion commander recommended approval of the applicant's discharge.

15.  On 12 December 1959, the convening authority set aside the November 1959 finding of guilty and the sentence and restored all rights, privileges, and property to the applicant.   

16.  On 18 December 1959, the separation authority approved the applicant's discharge action under the provisions of Army Regulation 635-208 with a UD and reduction to pay grade E-1.  It was also directed that he be returned to the continental United States.

17.  On 20 January 1960, he was discharged under the provisions of Army Regulation 635-208 with a UD, in pay grade E-1.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He was credited with completing 1 year and 11 months of net active service and he had 33 days of time lost.

18.  On 9 March 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge.

19.  Army Regulation 635-208, in effect at the time, governed the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  A UD was normally issued, unless the particular circumstances in a given case warranted a general or an honorable discharge.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policies and procedures for the separation of enlisted personnel:

   a.  Paragraph 3-7a states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b states 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 evidence of record shows the applicant was convicted by two summary and two special courts-martial for misconduct.  With the exception of the suspended sentence as a result of his last court-martial, the sentences were approved and executed.  The evidence does not show the court-martial was the primary reason and authority for his discharge action; however, it did contribute to his ultimate discharge.  His company commander stated that due to the applicant's repeated acts of misconduct and his unsatisfactory attitude towards military life he was recommending the applicant be discharged.  The applicant acknowledged the proposed separation action, waived his rights, and elected not to submit a statement in his own behalf.  He was discharged accordingly on 20 January 1960.

2.  His contentions were carefully considered; however, based on the available evidence, there is no basis for the upgrade of his discharge to a general or a fully honorable discharge.  He has submitted neither probative evidence nor a convincing argument to show his separation action was unjust.  The evidence shows his misconduct diminished the quality of his service below that meriting an upgrade of his discharge.  He was properly discharged and he has not shown otherwise.

3.  In the absence of evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20120004845



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ABCMR Record of Proceedings (cont)                                         AR20120004845



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