BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140019683 


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, the daughter of a deceased former service member (FSM), requests, through his Member of Congress, in effect, an upgrade of her father's dishonorable discharge. 

2.  The applicant states her father's case should be reopened because a witness to the discrimination that existed at the time has surfaced and is willing to go public with the conditions that contributed to the FSM's unfavorable behavior.  

3.  The applicant provides Congressional correspondence, a statement from an individual, and a picture of Soldiers of the 578th Engineer Battalion. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120011966, on 12 February 2013.  

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that her request was not received within one year of the Board's decision.  However, in light of the Congressional interest, this case will be considered as a one-time exception to policy. 

3.  The FSM'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 that his records were lost or destroyed in that fire.  However, there were sufficient semi-burned documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

4.  The FSM's available records show he enlisted in the Regular Army on 30 August 1951.  He was trained in and held military occupational specialty 122.10 (Bridge Specialist). 

5.  The FSM's available records also show he served in Korea from on or about 18 March 1952 to on or about 28 October 1952.  He was assigned to the 578th Engineer Battalion. 

6.  His DA Form 24 (Service Record) shows he was awarded or authorized the Korean Service Medal with 4 bronze service stars, United Nations Service Medal, and the National Defense Service Medal. 

7.  On 10 March 1954, at Headquarters, Engineer Center, Fort Belvoir, VA, he was arraigned and convicted by a general court-martial of two specifications of being absent without leave (AWOL) from 1 September 1953 to 5 December 1953 and from 9 December 1953 to 2 February 1954, and one specification of larceny. The court sentenced him to a dishonorable discharge and confinement at hard labor for 1 year, 11 months, and 15 days.  

8.  On 16 March 1954, the convening authority approved the sentence but ordered the execution of the portion of the sentence pertaining to dishonorable discharge suspended until completion of the appellate review.  The Record of Trial was forwarded to The Judge Advocate General of the Army.  

9.  On 22 March 1954, the United States Army Board of Review reviewed his case and found the findings of guilty and the sentence as approved by proper authority were correct in law and fact and having reviewed the entire record, affirmed the finding of guilty and the sentence.  

10.  On 16 May 1954, Headquarters, U.S. Disciplinary Barracks, New Cumberland, PA, published a memorandum indicating the FSM did not file a petition for grant of review by the Court of Military Appeals. 

11.  On 10 September 1954, The Adjutant General requested the FSM be restored to duty upon successful completion of a required period of training and that the unexecuted portion of the FSM's sentence by remitted.  A classification board had convened and recommended him for restoration and clemency.

12.  On 14 February 1955, at Fort Hood, TX, the FSM was convicted by a summary court-martial of one specification of AWOL from 31 January 1955 to 1 February 1955.  The court sentenced him to restriction to the limits of Fort Hood for 45 days.  The convening authority approved the sentence on 21 February 1955. 

13.  On 27 April 1955, also at Fort Hood, the FSM was convicted by a special court-martial of one specification of being AWOL from 4 to 8 April 1955, one specification of operating a vehicle in a reckless manner, and one specification of impersonating a noncommissioned officer.  The court sentenced him to confinement at hard labor for 6 months, forfeiture of $50 pay per month for 6 months, and reduction to the lowest enlisted grade.  The convening authority approved the sentence on 3 May 1955. 

14.  On 15 July 1955, the FSM's immediate commander requested a board of officers be convened under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) for the purpose of determining the FSM's fitness for retention due to his habitual misconduct.  The FSM was subsequently directed to appear before a board of officers to determine whether he should be separated from the Army for unfitness.   

15.  On 30 July 1955, a board of officers convened at Headquarters, Fort Hood, TX, for the purpose of determining the FSM's suitability for retention.  The board found that the FSM's record revealed evidence of traits of character which rendered his retention in the service undesirable, namely, repeated AWOL and definite lack of moral responsibility.  The board recommended the FSM's discharge from the Army under the provisions of Army Regulation 615-368 for unfitness with the issuance of an Undesirable Discharge Certificate.

16.  The FSM was accordingly discharged on 17 August 1955 under the provisions of Army Regulation 615-368 with an undesirable discharge.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he completed 2 years, 4 months, and 24 days of days of creditable active service and he had 571 days of lost time.

17.  There is no indication he applied to the Army Discharge Review Board for a review of his discharge processing within that board's 15-year statute of limitations. 

18.  On 12 February 2013, the ABCMR considered his petition for a discharge upgrade but found no evidence of error or injustice and denied his request. 

19.  The applicant provides a photograph of Soldiers in the 578th Engineer Battalion.  She also provides a statement from an individual who states: 

* he worked with the FSM who was a 2 1/2 ton truck driver; he was a proud Soldier at a time of war 
* the FSM loved his country and his duties during that period of time

20.  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 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.

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

22.  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 FSM had an extensive history of misconduct as evidenced by his three court-martial convictions, multiple instances of AWOL, undesirable military traits and habits, and resentment of authority.  Accordingly, his chain of command recommended a board of officers be convened under applicable regulations for the purpose of determining his 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 FSM’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.  There is insufficient evidence to support the applicant's contention that his acts of misconduct (AWOL, larceny, operating a vehicle in a reckless manner, or impersonating a noncommissioned officer) were caused by discrimination.  

4.  Based on his record of indiscipline, the FSM'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.  Therefore, he is not entitled to either a general or an honorable 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 to amend the decision of the ABCMR set forth in Docket Number AR20120011966, dated 12 February 2013.



      _______ _   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)                                         AR20140019683





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ABCMR Record of Proceedings (cont)                                         AR20140019683



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