BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120020467 


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 discharge.

2.  The applicant states the infractions leading to his discharge were not significant enough to warrant an undesirable discharge.

3.  The applicant provides no additional documents.

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 was inducted into the Army of the United States and entered active duty on 12 February 1953.  


3.  The applicant's record shows he was convicted by special court-martial on:

	a.  19 April 1954, for striking a noncommissioned officer (NCO); willfully disobeying a lawful order from his superior NCO; and being disrespectful in language towards his superior NCO.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

	b.  1 August 1955, for violating a lawful regulation by storing and transporting several cans of beer in a 2 1/2-ton dump truck.  He was sentenced to confinement at hard labor for 2 months, a forfeiture of pay for 2 months, and reduction to the lowest enlisted grade.

4.  His record further shows he was reported absent without leave (AWOL) from 26 January 1954 for 1 day and from 2-5 January 1955 for 4 days.

5.  On 19 September 1955, the applicant underwent a psychiatric evaluation.  A Neuropsychiatrist at the Mental Hygiene Consultation Service at Fort Hood, TX determined the applicant was found to have no psychiatric disease.  However, he was suffering from a character disorder what was best described as a diagnosis of:

* Passive-Aggressive reaction, chronic, moderate, manifested by poor adjustment prior to his entry into service
* Hostility to persons in positions with authority
* Negativism
* Passive obstructive behavior
* Inability to accept responsibility
* Poor motivation for military service

6.  Based on the results of the psychiatric evaluation and his continued failure to adapt to military duty, on 11 February 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 and Traits of Character)) to determine the applicant's fitness for retention.  The immediate commander remarked that the applicant's character was poor and his efficiency was unsatisfactory.

7.  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 and requested military counsel represent him when he appeared before the board.

8.  On 20 April 1956, a board of officers convened at Fort Polk, LA for the purpose of determining whether the applicant should be separated prior to his normal expiration of his term of service under the provisions of Army Regulation 615-268 by reason of unfitness.  The applicant appeared before the board with counsel.

9.  The board found that the applicant's record revealed frequent disciplinary actions because of infractions of regulations and the commission of offenses that were clearly evident in his unfounded complaints that were made with the intent to avoid service.  As a result, on 24 April 1956, the board recommended the applicant be discharged under the provisions of Army Regulation 615-368 for unfitness and be furnished an Undesirable Discharge Certificate.

10.  On 16 May 1956, the proceedings of the board of officers was approved by the appropriate authority.  The applicant was subsequently discharged on 4 June 1956 under the provisions of Army Regulation 615-368 for unfitness with an undesirable discharge.  He completed 2 years, 8 months, and 6 days of net active service with 227 days of time lost due to AWOL and confinement.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an 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 by reason of unfitness.  The 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.

13.  Army Regulation 615-368, also stated, in pertinent part, that a board of officers would recommend 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.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs 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 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.

	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 had a history of misconduct as evidenced by his 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.  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.

4.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20120020467



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ABCMR Record of Proceedings (cont)                                         AR20120020467



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