BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120017703 


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 to an honorable discharge.

2.  The applicant states:

* He was drafted into the Army in 1954 with diabetes but he served his country with dignity and grace
* He did what he was told to do for 2 years but after he was discharged, he had difficulties managing his diabetes
* He had no idea the Army discharged him with an undesirable discharge until he attempted to receive Department of Veterans Affairs (VA) benefits

3.  The applicant provides three character reference letters. 

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 available records show he was inducted into the Army and entered active duty on 1 December 1954.  At the time of his separation, he held military occupational specialty 910 (Utilities Repairman) and he was assigned to the 561st Medical Company.  

3.  The applicant’s records also show he served in Korea for a period of 1 year, 3 months, and 15 days.  

4.  The applicant's records contain a copy of a DD Form 493 (Record of Previous Convictions) that shows an extensive history of courts-martial as follows:

	a.  Headquarters, 54th Medical Group, Fort Polk, LA, Special Court-Martial Order Number 31, shows he was convicted of feigning a sore back for the purpose of avoiding service as an enlisted person from on or about 12 November 1955 to on or about 14 November 1955.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $25.00 pay per month for 3 months.  The sentence was adjudged on 1 December 1955 and it was approved on 2 December 1955.

	b.  Headquarters, Special Troops Battalion, Fort Leonard Wood, MO, Special Court-Martial Order Number 579, shows he was convicted of being absent without leave (AWOL) from 1 to 7 December 1955.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $25.00 pay per month for 3 months.  The sentence was adjudged on 30 December 1955 and it was approved on 31 December 1955.

5.  On 6 January 1956, he underwent a medical and/or psychiatric evaluation due to his continued misconduct.  The military medical officer stated the applicant was undesirable as a Soldier.  He (the applicant) stated on numerous times that he wanted out of the Army by any means or by any type.  He refuses to adapt himself to military law and order.  It was recommended he be discharged. 

6.  On 18 January 1956, the applicant's immediate commander requested a board of officers be convened under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) for the purpose of determining the applicant's fitness for retention. The immediate commander remarked that the applicant had two court-martial convictions, his character was poor, and his efficiency was unsatisfactory.  

7.  On 30 January 1956, the applicant underwent a medical examination.  The Chief of the Medical Health Clinical Services at Fort Leonard Wood, MO, determined the applicant was found to have no disease or a disqualifying or disabling mental or physical defect that warranted discharge under medical channels.  Attempts to rehabilitate him had failed and it was recommended that he may be discharged under Army Regulation 615-368 for being unwilling and sullen.  

8.  On 15 February 1956, the applicant was directed to appear before a board of officers to determine whether he should be separated from the Army for unfitness.  The applicant acknowledged receipt.  

9.  On 16 February 1956, a board of officers convened at Headquarters, Fort Leonard Wood, MO, for the purpose of determining the applicant's suitability for retention.  The board found that the applicant's record revealed frequent disciplinary actions because of infractions of regulations and commission of offenses that were clearly evident in his unfounded complaints that were made with the intent to avoid service.  The board recommended the applicant's discharge from the Army under the provisions of Army Regulation 615-368 for unfitness with the issuance of an Undesirable Discharge Certificate.

10.  The applicant was discharged on 1 March 1956 under the provisions of Army Regulation 615-368 with an undesirable discharge.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he completed 1 year of creditable active service and he had 91 days of lost time.

11.  In December 1982, the Army Discharge Review Board reviewed his discharge and determined it was proper and equitable.  Accordingly, it denied his petition to upgrade his discharge. 

12.  He submits three character reference letters from relatives who describe him as a flashy dresser, mild mannered, and tempered.  He talks out of turn and occasionally hallucinates.  He has poor vision and bad overall health.

13.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by 
giving evidence of habits and traits of character manifested by misconduct.  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.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 615-368, also stated, in pertinent part, that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under Army Regulation 615-369 (Enlisted Personnel - Discharge - Inaptitude or Unsuitability)), without referral to another board, might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted.  As examples, such circumstances would apply where the cause of unfitness had been minor, relative to the length of efficient service or where there had been a definite effort at self control; or where an individual had, during his current period of service, distinguished himself by an act of heroism, which in itself reflected great credit on the individual and the military service.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the separation of enlisted personnel.  Paragraph 3-7a states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  

16.  Army Regulation 635-200, 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 had a history of misconduct as evidenced by his two instances of court-martial, undesirable military traits and habits, AWOL, and resentment of authority.  Accordingly, his chain of command recommended a board of officers be convened under applicable regulations for the purpose of determining the applicant's fitness for retention in the Army.  The board found him unfit for retention and recommended his discharge with an Undesirable Discharge Certificate.  The convening authority approved the board's findings and recommendation.  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations at the time, with no procedural errors which would tend to jeopardize his rights.  The separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review.  There is neither an error nor an injustice.
3.  Contrary to his contention that he was unaware of his undesirable discharge, the evidence of record clearly shows he petitioned the ADRB in the early 1980s for an upgrade of his undesirable discharge. 

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20120017703





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ABCMR Record of Proceedings (cont)                                         AR20120017703



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