IN THE CASE OF: 

		BOARD DATE:	      29 November 2012

		DOCKET NUMBER:  AR20120008799 


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.

2.  The applicant states:

	a.  He believes his discharge and the characterization of his service was both improper and inequitable.  He has seen similar cases on the Army Board for Correction of Military Records (ABCMR) website where applicants started out with a general discharge and it was upgraded to honorable.  He believes the incident he was involved in was not severe enough to warrant a discharge as he only had 3 months left on his enlistment.  He should have received administrative action and he could have been rehabilitated as it was the only incident that marred his service.

	b.  At the time of the incident, he was only 19 years old and weighed 135 pounds.  He enlisted under the buddy system, but the Army broke the commitment and sent him to Germany.  He went out drinking with another Soldier and when they returned to the barracks he had a brief scuffle with his platoon sergeant.  The platoon sergeant won due to the applicant's small size and his intoxication.  He was drunk and disrespectful but no one was hurt in the incident.  He believes the incident was symptomatic of his immaturity and lack of a supportive environment since he had few friends at the time.

	c.  At the time of his discharge, he believes it was influenced by the Army's need to downsize and under other circumstances he would have been allowed to complete his tour.  This was the first and only negative incident of his military service.  He received and accepted bad advice from his chain of command to accept the discharge.  He was immature, homesick, and disillusioned because the Army did not honor the commitment to keep buddies together, and he trusted that his leaders would recommend what was best for him.  Instead, he thinks they took the action that was best for the Army at the time.

	d.  His post-military life demonstrates that he could have easily been rehabilitated in that it shows his life has been productive, successful, and included subsequent service to the U.S. Government as well as his community.  After his discharge, he earned his associate's degree in computer programming and worked for primarily large companies in the manufacturing industry in Milwaukee for the next 15 years.  He subsequently worked for the U.S. Postal Service and retired in 1999.  He owns income properties in Wisconsin and Arizona, does community service work for the city of Milwaukee tourism department, and does service for his church, including volunteering to work at inter-faith programs to support the elderly.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* seven statements of support
* a letter
* a certificate
* a printout titled Chronology
* a printout titled 1957:  United States Army - As they saw it
* two pages of email
* a résumé
* four ABCMR Records of Proceedings (ROPs)

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 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 is not available to the Board 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, the applicant provided his DD Form 214 which is sufficient for the Board 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 29 July 1955 at the age of 17 years and 10 months and he held military occupational specialty 720.00 (Communications Clerk).  He was assigned to the Message Center Operations Company, 97th Signal Battalion, Germany.

4.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the applicant's DD Form 214 shows he was discharged on 16 May 1958 under the provisions of Army Regulation 635-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge), for unfitness, with an under other than honorable conditions characterization of service.  He completed 2 years, 9 months, and 16 days of net active service with 2 days of lost time and was furnished an Undesirable Discharge Certificate.

5.  Item 11c (Reason and Authority) of his DD Form 214 contains the entry SPN (Separation Program Number) 387.  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that SPN code 387 was given for separations under the provisions of Army Regulation 635-208 with the narrative reason of "habits and traits-misconduct."

6.  In a self-authored statement, dated 15 February 2012, the applicant stated the incident that precipitated his discharge occurred during his service in Germany when he went out drinking and returned to the barracks intoxicated.  He was drunk and disrespectful and got into a scuffle with his platoon sergeant.  

7.  The applicant provides seven statements of support, three undated and four dated between 15 March and 22 April 2012, wherein his wife, stepdaughter, sister, nephew, and friends all stated that the applicant was a hardworking, kind, faithful, caring individual who volunteers in his community, and exhibits excellent ethics and trustworthiness.  

8.  The applicant also provides four ABCMR ROPs, dated between 28 July and 11 October 2011, wherein each applicant requested and received an upgrade of their general discharge to an honorable discharge.  In each case, the applicant's records were available for review with the case.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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 record is void of the facts and circumstances concerning the events that led to his discharge from the Army.  However, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208, for unfitness - habits and traits-misconduct.

2.  In the absence of evidence to the contrary, it is presumed his separation processing 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 reason for discharge were appropriate considering the available facts of the case.




3.  The applicant has not provided any evidence that shows his discharge was the result of the Army's need to downsize.  By his own admission, he stated it was due to him being drunk and disrespectful and getting into a physical fight with his platoon sergeant.

4.  The applicant contends that his discharge should be upgraded because he was young and immature at the time of his service.  Records show that he was almost 21 years of age at the time of his misconduct.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The applicant also contends the ABCMR upgraded at least four other discharges to honorable discharges; therefore, his undesirable discharge should be upgraded.  However, unlike the applicant's case, in all four cases the applicant provided each applicant had received a general discharge and records were available to verify their conduct throughout their period of service.  In addition, the cases are not relevant as ABCMR cases do not set precedent; each case is considered on its own merits.

6.  Although the applicant's post-service conduct is noteworthy, it doesn't mitigate the fact that he was involved in misconduct during his military service.  Also, he had 2 days of lost time, which indicates that the drunk and disrespectful incident was not the only incident that marred his service.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge in this case.

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)                                         AR20120008799





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ABCMR Record of Proceedings (cont)                                         AR20120008799



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