IN THE CASE OF:	  

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120008278 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he was young and had a hard time getting along with his first sergeant (1SG) because his 1SG did not like Italians or anyone from Chicago because he thought they were all connected with the Mob.  He goes on to state that he requested a transfer but could not get it.  He also states that he liked the service and every time he sees an enlisted person he thanks them for their service. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and his Undesirable Discharge Certificate.

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 the applicant's records were lost or destroyed in that fire.  However, the documents provided by the applicant and those contained in a reconstructed record are sufficient to conduct a fair and impartial review of this case.

3.  The applicant was born in 1936 and enlisted in the Regular Army with a moral waiver on 23 May 1955 for a period of 4 years.  He completed his basic training at Fort Leonard Wood, Missouri and was transferred to Fort Campbell, Kentucky to undergo his advanced individual training as an infantryman and airborne training.

4.  The available records show that he went absent without leave (AWOL) from 22 December to 25 December 1955; however, the available records are silent as to any punishment imposed.

5.  He again went AWOL on 2 January 1956 and remained absent until he was returned to military control at Fort Sheridan, Illinois on 21 January 1956.

6.  On 12 March 1956, he was convicted by a special court-martial at Fort Sheridan of being AWOL from 2 January to 20 January 1956.  He was sentenced to confinement at hard labor and a forfeiture of $55.00 for 3 months.  

7.  He completed his confinement at Fort Riley, Kansas and was transferred to Fort Bragg, North Carolina.

8.  On 4 October 1956, he was again convicted by a special court-martial at Fort Sheridan of being AWOL from 1 June to 22 June 1956 and 11 August to            21 August 1956.  He was sentenced to confinement at hard labor and a forfeiture of $50.00 for 3 months.  He was again transferred to Fort Riley to serve his confinement and was subsequently assigned to Fort Campbell, Kentucky.

9.  On 11 October 1957, nonjudicial punishment (NJP) was imposed against him for failure to obey an order from a superior noncommissioned officer.

10.  On 25 October 1957, NJP was again imposed against him for failure to obey an order from a superior noncommissioned officer.

11.  On 4 November 1957, the applicant’s commander submitted a recommendation that the applicant be required to appear before a board of officers convened under the provisions of Army Regulation 635-208 to determine if he should be discharged prior to the expiration of his term of service due to undesirable habits or traits of character.  He cited the applicant’s record of repeatedly committing petty offenses as the basis for his recommendation.  

12.  On 19 November 1957, the applicant was notified that he was to appear before a board of officers at Headquarters, 2d Airborne Battle Group on            23 November 1957.

13.  The applicant appeared before the board of officers represented by counsel and declined the opportunity to challenge any members of the board.  After hearing all of the testimony and evidence, the applicant elected to give testimony in which he agreed with the testimony presented, stated that he could not get along in the Army and requested that the board discharge him under Army Regulation 635-208.

14.  The board of officers found that the applicant’s service was undesirable and recommended that he be discharged from the service because of undesirable habits or traits of character.  The appropriate authority approved the findings and recommendation of the board of officers and directed that the applicant be furnished an Undesirable Discharge Certificate.

15.  Accordingly, he was discharged under other than honorable conditions on  11 December 1957 under the provisions of Army Regulation 635-208 for  undesirable habits and traits of character based on repeated military offenses not warranting trial by court-martial.  He had served 1 year, 8 months, and 28 days of active service and had 291 days of lost time due to AWOL and confinement.

16.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

17.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of undesirable habits or traits of character manifested by misconduct.  An undesirable discharge was normally considered appropriate. 

18.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel Separations) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

19.  Paragraph 3-7b also 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 administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offenses and his undistinguished record of service during such a short period.  He was assigned to no less than three different units and committed acts of misconduct in all three units.  The applicant’s overall service simply does not rise to the level of a discharge under honorable conditions.

4.  Therefore, absent evidence to show otherwise, there appears to be no basis to upgrade his 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)                                         AR20120008278





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ABCMR Record of Proceedings (cont)                                         AR20120008278



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