IN THE CASE OF:	  

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120008088 


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, the widow of a deceased former service member (FSM), requests his undesirable discharge be upgraded to honorable. 

2.  The applicant states, in effect:

	a.  her husband paid for his mistakes, which included two summary court-martial convictions and one special court-martial conviction for being absent without leave (AWOL) on three occasions, while in the service.
 
	b.  her husband should not be punished for his actions twice.

	c.  he did his entire tour.

3.  The applicant provides:

* FSM's death certificate
* Page 3 of the FSM's DD Form 230 (Service Record)
* 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 FSM was inducted into the Army of the United States on 22 May 1953.   He completed his training and was awarded military occupational specialty (MOS) 4345 (light vehicle driver) and later MOS 1745 (light weapons infantryman).

3.  On 27 November 1953, he was convicted by a summary court-martial of being AWOL from 2 November 1953 to 10 November 1953.  

4.  Between May 1954 and November 1954, nonjudicial punishment was imposed against the FSM on four occasions for missing bed check (three specifications) and dereliction of duty.

5.  On 18 January 1955, he was convicted by a summary court-martial of being AWOL from 1 January 1955 to 3 January 1955.  

6.  On 1 March 1955, he was convicted by a special court-martial of being AWOL for almost 7 hours on 30 January 1955.  

7.  On 22 March 1955, his commanding officer recommended he be eliminated from the service under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness) and requested a board of officers be convened to determine whether or not the FSM should be discharged prior to his expiration term of service date.

8.  On 21 August 1955, a board of officers convened.  The board recommended the FSM be discharged under the provisions of Army Regulation 615-368 for unfitness due to evidence of habits and traits of character manifested by his misconduct and repeated petty offenses not warranting trial by court-martial and that he receive an undesirable discharge.

9.  On 27 April 1955, the separation authority approved the recommendation.   


10.  On 3 June 1955, the FSM was discharged under the provisions of Army Regulation 615-368 for unfitness.  He had completed 1 year, 11 months, and 
21 days of creditable service with 21 days of lost time. 

11.  There is no evidence the FSM applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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.

13.  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.

14.  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 FSM's record of service included four NJPs, two summary courts-martial, one special court-martial, and 21 days of lost time.  Due to the lost time, the FSM did not complete his “entire tour.”  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient evidence to warrant an honorable or a general discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  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)                                         AR20120008088





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ABCMR Record of Proceedings (cont)                                         AR20120008088



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