IN THE CASE OF:	  

		BOARD DATE:	  24 October 2013

		DOCKET NUMBER:  AR20130004305 


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 under other than honorable conditions to an honorable discharge.

2.  The applicant states:

	a.  He was honorable in all aspects until he got emotionally involved with a Korean woman.  He was young and inexperienced, it "blew his mind," and he could not handle it.  He made a severe mistake and he has regretted his behavior since then.  His life has been honorable since he was discharged.

	b.  In the 1960's, he was trained by the New Haven, CT, mental health department to be a drug and alcohol counselor.  He worked at the in/outpatient facility under the supervision of J____ R____'s spouse, R____.  He worked at Gould National Battery, Zanesville, OH, for 22 years and he was the president of the union for 15 years.  He traveled extensively negotiating contracts and handling arbitration cases.

	c.  He finished his working career at the Lydall Westex Division, Worthington, OH.  In all of his working positions, he maintained excellent production standards and attendance.  In1981, he started a branch of a motorcycle club and held various offices in the club to include president, business manager, treasurer, and road captain.  He was a born-again Christian and has a reputation for fairness and capability in dealing with conflict.

	d.  Over the years, he has been a ready and willing counselor, mentor, and support person for many people in situations such as sexual abuse, unwanted pregnancy, drug and alcohol abuse, homelessness, and job loss.  He has taken people into his home and given them rides to jobs to help them get back on their feet.

	e.  He always regretted his behavior while in the service.  He loves his country and wishes he could go back and do things over.  He left school shortly after his 17th birthday, lied about his age, and voluntarily enlisted.  He was honorably discharged on 11 February 1957.  He reenlisted; he was not drafted and his life has been honorable since that time.  He is now 75 years old and would like an honorable discharge and to be recognized with benefits for the honorable time that he served before he went astray.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Certification of Military Service
* DA Form 37 (Report of Proceedings of Board of Officers) with 10 pages of documents related to his discharge

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 complete military records are 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 his records were lost or destroyed in that fire.  However, his reconstructed records contain his DD Form 214 and other documents which are sufficient for the Board to conduct a fair and impartial review of this case.

3.  The applicant's reconstructed records show he enlisted in the Regular Army on 25 January 1955 and he held military occupational specialty 463.10 (Quartermaster (QM) Equipment Repairman).  He was assigned to the 607th QM Detachment, Korea.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 3 June 1957, for failing to be at his appointed place of duty at the prescribed time (reveille formation)
* 21 December 1957, for violating a lawful regulation by being in an off-limits area
* 25 January 1958, for violating his curfew

5.  He was convicted by a summary court-marital as follows on:

* 8 February 1958, for one specification each of disobeying a lawful order and breaking restriction
* 3 March 1958, for one specification of absenting himself from his appointed place of duty

6.  On 24 March 1958, he was convicted by a special court-marital of one specification each for failing to go to his appointed place of duty at the prescribed time, violating a lawful regulation, and breaking restriction.  He was sentenced to confinement for 4 months and forfeiture of $39.00 per month for 4 months.

7.  On 7 July 1958, his immediate commander requested initiation of discharge action against him under the provisions of Army Regulation 635-208 (Undesirable Habits or Traits of Character – Enlisted Men – Discharge) for unfitness.  The commander stated the applicant's record indicated he was an instigator of trouble and had not responded to rehabilitation attempts.  He cited the applicant's record of NJP and his court-martial convictions and stated his conduct and efficiency were unsatisfactory.

8.  On 8 July 1958, the applicant underwent a medical examination.  The examining physician stated he was free from mental defect, disease, and derangement, and was able to distinguish right and wrong.  He further stated the applicant had no mental or physical defects to warrant disposition through medical channels.  He cleared the applicant for any administrative action deemed appropriate by the command.

9.  On 28 July 1958, the applicant was notified that he was scheduled to appear before a board of officers to determine if he should be discharged under the provisions of Army Regulation 635-208 for unfitness.  On 28 July 1958, he acknowledged receipt of the notification and declined to seek legal counsel.

10.  On 6 August 1958, a board of officers convened, reviewed the applicant's records, and heard testimony from various witnesses.  The applicant was afforded the opportunity to cross examine witnesses, present evidence in his own behalf, and testify in person or submit a written statement.

11.  In the Report of Proceedings of Board of Officers, dated 11 August 1958, there is no evidence that shows the applicant stated his misconduct was caused because he became involved with a Korean woman.

12.  The board determined the applicant displayed evidence of habits and traits of character manifested by continued misconduct and recommended his discharge and the issuance of an Undesirable Discharge Certificate.  On 24 September 1958, he was discharged accordingly.

13.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 for unfitness with an under other than honorable conditions character of service.  He completed 3 years, 3 months, and 26 days of net active service with 127 days of lost time due to confinement.

14.  Item 32 (Remarks) of this DD Form 214 contains the entry "Honorable Discharge (COG [convenience of the government]) on 11 Feb 57 to reenl – Reenl 12 Feb 57 for 3 years."

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

16.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by frequent incidents of a discreditable nature with civil or military authorities.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

17.  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.

18.  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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on three occasions for failing to be at his appointed place of duty, violating a lawful regulation, and violating his curfew.  In addition, he was convicted by three separate courts-martial for disobeying a lawful order, failing to go his appointed place of duty, absenting himself from his appointed place of duty, violating a lawful regulation, and breaking restriction.  Accordingly, his immediate commander initiated separation action against him.

2.  The evidence of record confirms a board of officers determined the applicant displayed evidence of habits and traits of character manifested by continued misconduct and recommended his discharge and the issuance of an Undesirable Discharge Certificate.  In the absence of evidence to the contrary, it is presumed that his separation processing was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.

3.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Although the applicant's post-service conduct may be noteworthy, it doesn't mitigate the fact that he was involved in several acts of misconduct during his military service.  This misconduct rendered his service during his last enlistment period unsatisfactory.

5.  In view of the foregoing, he is not entitled to 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 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)                                         AR20130004305



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ABCMR Record of Proceedings (cont)                                         AR20130004305



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