IN THE CASE OF:	

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130004573 


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 his undesirable discharge be upgraded to honorable.

2.  The applicant states:

* he is trying to receive health benefits from the Department of Veterans Affairs (VA) and the VA does not understand the wording
* he is on social security
* he was young with no education and did not understand military bearing
* he doesn’t drink or smoke 

3.  The applicant provides:

* criminal history
* character reference letter
* DD Form 214 (Report of Separation from the Armed Forces of the United States)

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 born on 25 May 1937.  He enlisted in the Regular Army on 3 June 1954 for a period of 4 years.  He completed his training and was awarded military occupational specialty 310.00 (field communications crewman).

3.  On 17 January 1955, he was convicted by a summary court-martial of being absent without leave (AWOL) from 6 January 1955 to 9 January 1955.  

4.  On 20 June 1955, he was convicted by a special court-martial of assault and carrying a concealed weapon (brass knuckles).  

5.  On 3 October 1955, nonjudicial punishment (NJP) was imposed against him for being AWOL for approximately 12 hours.

6.  On 16 November 1955, he was convicted by a special court-martial of communicating a threat to injure and failing to obey three lawful orders.  

7.  On 25 November 1955, his commanding officer recommended he be eliminated from the service under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness) and requested a board of officers be convened to determine whether or not the applicant should be discharged prior to his expiration term of service date.

8.  On 15 December 1955, a board of officers convened.  The board recommended the applicant be discharged under the provisions of Army Regulation 615-368 for unfitness due to evidence of unfitness which rendered retention in the service undesirable and that he receive an undesirable discharge.

9.  On 11 January 1956, the separation authority approved the recommendation.   

10.  On 16 February 1956, the applicant was discharged under the provisions of Army Regulation 615-368 for unfitness.  He had completed 1 year, 8 months, and 
11 days of creditable service with 3 days of lost time. 

11.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
12.  He provides a character reference letter from a retiree of the Indiana Correctional Facility and current Reserve police officer who attests:

* he has known the applicant for approximately 10 years
* in the time he has known the applicant, he has been an upstanding citizen
* he knows of no malice or unjust action the applicant has been any part of
* the applicant is always there to help someone in need
* the applicant’s thinking is "I thought I had it bad with no shoes, until I met the man with no feet" 

13.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  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.  The regulation also provided that when discharged because of unfitness, an undesirable discharge would be furnished.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

15.  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 contends he is trying to receive VA health benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.

2.  He contends he was young with no education and did not understand the military bearing.  However, age is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted, he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

3.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  His record of service included one NJP, one summary court-martial, two special courts-martial, and 3 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient evidence to warrant an honorable or a general discharge.

5.  His administrative separation 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 reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130004573





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ABCMR Record of Proceedings (cont)                                         AR20130004573



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