IN THE CASE OF:	  

		BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140004272 


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.

2.  The applicant states he believes he was treated unfairly.  He did not do anything wrong and was never in any trouble while serving in the military.  He was outside of his shop cleaning when he heard someone call him.  His back was turned and he replied "what."  He turned around and noticed it was an officer and he came to attention and saluted.  He believes it was unfair for him to receive the discharge he received based on that.  His discharge is keeping him from receiving his Army benefits.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), Undesirable Discharge Certificate, and a letter.

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 enlisted in the Regular Army on 7 July 1955 and he held military occupational specialty 550.00 (Stevedore).  He was assigned to the 587th Engineer Company, Germany, on 24 March 1957.

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

* 8 July 1957, for violating the pass regulation
* 18 October 1957, for being absent without leave (AWOL) from his assigned unit from 18 to 19 October 1957
* 19 December 1957, for being absent from his appointed place of duty at the prescribed time
* 8 January 1958, for being AWOL from on or about 4 to7 January 1958

4.  On 8 January 1958, he underwent a medical examination at his commander's request.  The examining physician found both his mental condition and physical condition were normal and he had no disqualifying medical or physical defects to warrant disposition through medical channels.

5.  On 21 February 1958, he was notified by his immediate commander that a board of officers would convene under the provisions of Army Regulation
635-208 (Personnel Separations – Discharge – Unfitness and Unsuitability) to determine if he should be discharged for unfitness because of undesirable habits or traits of character, due to unsuitability, or if he should be retained on active duty. 

6.  On 24 February 1958, a board convened and interviewed members of the applicant's chain of command and fellow unit members.  The applicant appeared before the board with his legal counsel.  He testified, was able to cross-examine adverse witnesses, and to present evidence in his own behalf.  

7.  On 25 February 1958, the board concluded and carefully considered the testimony and record of the applicant's habits and traits of character manifested by misconduct.  The board recommended that he be discharged under the provisions of Army Regulation 635-208, for unfitness - undesirable habits or traits of character.



8.  On 13 March 1958, the separation authority approved his separation action under the provisions of Army Regulation 635-208, for unfitness, and directed the issuance of an Undesirable Discharge Certificate.  On 2 April 1958, he was discharged accordingly.

9.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-208, for unfitness (separation program number 286), with an under other than honorable conditions characterization of service.  

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

11.  Army Regulation 635-208, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when it was clearly established that despite attempts to develop him as a satisfactory Soldier, further effort was unlikely to succeed, rehabilitation was impracticable, and the individual was not amenable to rehabilitation.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.

12.  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.  

13.  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 four occasions for violating a regulation, being AWOL on two different occasions, and failing to report.  Accordingly, his immediate commander initiated separation action against him for unfitness under the provisions of Army Regulation 635-208.

2.  His separation action 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 for discharge were therefore appropriate considering all the facts of the case.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the 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.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  In addition, his misconduct rendered his service unsatisfactory.  Therefore, 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 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)                                         AR20140004272



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ABCMR Record of Proceedings (cont)                                         AR20140004272



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