IN THE CASE OF:	  

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130015955 


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, in effect, his undesirable discharge be upgraded.

2.  He states per his records at the Department of Veterans Affairs (VA) Medical Center, he was listed as being absent without leave (AWOL).  However, he maintains he was in the stockade.  He adds that he was sentenced to the stockade initially for 27 days, but due to an incident he served approximately six months.  Upon release from the stockade, he returned to his company.  At the time he requested a hardship discharge and was told that he was granted a hardship discharge, but upon release from the Army he discovered his discharge was characterized as undesirable. 

3.  He provides:

* Self-authored statement
* Report of Proceedings by a Board of Officers with an extract of time lost, statement and certificate by commanding officer, and outpatient index 
* Special Orders Number 190, dated 16 August 1954
* Special Orders Number 197, dated 24 August 1954
* Special Orders Number 184, dated 9 August 1954
* VA Form 686c (Declaration of Marital Status), dated 1 November 1954
* WD AGO Form 53 (Enlisted Record and Report of Separation – Honorable Discharge)
* Two DD Forms 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'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, there were sufficient documents remaining in a reconstructed record for the ABCMR to conduct a fair and impartial review of this case.

3.  The available records show he enlisted in the Regular Army (RA) on 26 June 1946 and remained in the Army through two reenlistments. 

4.  A DD Form 493 (Record of Previous Convictions) shows: 

   a.  On 21 March 1953, Summary Court-Martial Orders Number 5, issued by the 307th Airborne Medical Battalion, Fort Bragg, NC, show he was found guilty of being prejudicial to good order and discipline on 16 March 1953.
   
   b.  On 13 August 1953, Summary Court-Martial Orders Number 13, issued by the 307th Airborne Medical Battalion, Fort Bragg, NC, show he was found guilty of failing to go at the time prescribed to his appointed place of duty on 6 August 1953.
   
   c.  On 19 November 1953, Summary Court-Martial Orders Number 4, issued by the 5th Evacuation Hospital, Fort Bragg, NC, show he was found guilty of being AWOL from 4 to 12 November 1953 and 16 to 17 November 1953.
   
   d.  On 11 December 1953, Special Court-Martial Orders Number 27, issued by the 15th Field Hospital, Fort Bragg, NC, show he was found guilty of being AWOL from 2 to 5 December 1953.
   
   e.  On 24 March 1954, Special Court-Martial Orders Number 5, issued by the XVIII Airborne Corps, Fort Bragg, NC, show he was found guilty of disobeying a lawful order from a noncommissioned officer (NCO) on 23 February 1954; being disrespectful in language to an NCO on 2 February 1954; and assaulting a private on 23 February 1954.   

5.  A statement from a medical officer, dated 17 August 1954, shows the applicant was found mentally responsible, both to distinguish right from wrong and to adhere to the right.  He was considered mentally competent to assist counsel and cooperate in his own defense.  There were no disqualifying mental or physical defects sufficient to warrant a medical discharge.

6.  His discharge proceedings were not in the available record.  However, the Report of Proceedings by a Board of Officers contained in his record and provided by the applicant show a board was convened on 13 September 1954 to determine whether he should be discharged under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Undesirable Habits or Traits of Character).  The applicant appeared before the board with counsel and was afforded a full opportunity to cross examine witnesses, to present evidence on his behalf, to testify in person or submit a written statement, and to submit a brief.

   a.  The personnel officer provided a statement on the applicant that shows his time lost as follows:
   
* 27 - 29 December 1952, 3 days AWOL
* 5 - 7 June 1953, 3 days AWOL
* 8 - 10 July 1953, 3 days AWOL
* 9 - 16 September 1953, 8 days confinement
* 4 - 11 November 1953, 8 days AWOL
* 16 November 1953, 1 day AWOL
* 2 - 4 December 1953, 3 days AWOL
* 11 December - 24 May 1954, 165 days confinement
   
   b.  In a certificate, dated 1 September 1954, the Commander, 15th Field Hospital, said the applicant had been a member of his command since
29 December 1953, when he assumed command.  He also said at the time he assumed command the applicant was in the post stockade and remained there until 24 May 1954.

	c.  On 13 September 1954, after carefully considering the evidence before it, the board found the applicant was unfit for further military service.  The board recommended and the separation authority approved the applicant's discharge under the provisions of Army Regulation 615-368.
7.  His DD Form 214 shows he was discharged on 27 October 1954 under the provisions of Army Regulation 615-368.  He was furnished an Undesirable Discharge Certificate.  He was credited with completing 7 years, 9 months, and
12 days of total active service with 194 days listed as lost time.

8.  The applicant's record is void of any evidence to show he requested and was granted a hardship discharge.

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

10.  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 undesirable habits of character manifested by misconduct.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), currently in effect, governs the policies and procedures 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 (emphasis added), 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.  There is no evidence and the applicant did not provide any to show that he requested and should have received a hardship discharge.  Since the applicant's discharge processing packet was not available for review, the exact reason or reasons he was processed for discharge due to unfitness is unknown.  However, based on his record of courts-martial, AWOLs, and confinements, it appears his discharge was due to repeatedly committing offenses warranting trial by court-martial.  

2.  The evidence of record shows he appeared with counsel before a board of officers and the board found he was undesirable for further retention in the military.  His entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special consideration.

3.  Further, the evidence of record shows he had 194 days of lost time due to AWOLs and confinement.   Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  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)                                         AR20130015955





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ABCMR Record of Proceedings (cont)                                         AR20130015955



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