PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           27 April 2000                   
	DOCKET NUMBER:  AR1999030783

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon 		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge (UD) be upgraded to a fully honorable discharge.

3.  The applicant makes no contentions.

4.  The applicant’s military records show that on 21 September 1955, he enlisted in the Regular Army for a period of 3 years.  He served in military occupational specialty (MOS) 140.00 (Field Artillery Crewman).

5.  On 14 March 1956, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 17 January-29 February 1956.  He was sentenced to confinement at hard labor for 2 months (suspended).

6.  On 14 September 1956, he was convicted by a special court-martial of being AWOL from 8 June-30 August 1956.  He was sentenced to confinement at hard labor for 6 months, and forfeiture of $25.00 pay per month for 6 months.

7.  On 13 February 1957, he was convicted by a summary court-martial of disobeying a lawful order from a noncommissioned officer on 8 February 1957.  He was sentenced to confinement at hard labor for 1 month, and forfeiture of $55.00 pay.

8.  On 7 May 1957, the applicant underwent a mental status evaluation by professionally trained personnel.  It was determined that “he was able to distinguish right from wrong, and to adhere to the right and to understand the nature of the proceedings against him.  He had no disease or defect sufficient to warrant disposition under the provisions or Army Regulation 635-40.”

9.  On 10 May 1957, a statement written by the applicant’s commander shows that he was deliberately absent from his unit on 27 April 1957 so that he would get a disciplinary report.  The available records do not show, if in fact, disciplinary action was taken against him.

10.  On 10 May 1957, the applicant was notified that a board of officers would convene to determine whether he should be discharged prior to the expiration of his term of service under the provisions of Army Regulation 635-208, for unfitness, as a result of his undesirable habits and traits of character.  The very same day, he acknowledged notification and stated that he did not desire legal counsel.  

11.  On 13 May 1957, he was notified to appear before a board of officers on 
14 May 1957.  On 13 May 1957, he acknowledged notification, and he stated in writing that he waived the 3-day advanced notification.  He also stated that he did not desire representation by legal counsel and that he did not desire to have any witnesses to appear in his behalf. 
12.  On 14 May 1957, the applicant appeared before the board without counsel.  He was advised of the specific evidence and allegations against him.  He was given an opportunity to present evidence in his own behalf.  The available evidence does not show that he addressed the board.

13.  On 14 May 1957, the board of officers, after carefully considering the evidence of record, concluded that the applicant had undesirable habits and traits of character.  The board recommended that he be separated from the service under the provisions of Army Regulation 635-208, for unfitness, due to undesirable habits and traits of character with a general discharge. 

14.  On 22 May 1957, the approving authority approved the Boards proceedings and directed discharge with a UD.  

15.  On 12 June 1957, the applicant was discharged under the provisions of Army Regulation 635-208 by reason of unfitness, due to undesirable habits and traits of character with a UD.  He had completed 11 months and 11 days of active military service.  He also had 284 days lost time due to being AWOL and in confinement.

16.  In accordance with Army Regulation 635-208, Paragraph 12c, then in effect, the convening authority could not approve the issuance of a discharge of a lesser character than that recommended by a board of officers.  However, he could authorize the issuance of a discharge of a higher character than that recommended by a board of officers.

17.  Evidence of record indicates that the applicant applied to the Army Discharge Review Board in 1999, which was past that board’s 15-year statute of limitation.

18.  Army Regulation 635-208, in effect at the time set forth the basic policy, and guidance for the prompt elimination of enlisted personnel.  The regulation provided, in pertinent part, for the separation of individuals determined to have undesirable habits and traits of character demonstrated through antisocial, or amoral behavior, or misconduct.  A UD was normally considered appropriate but a general or an honorable discharge could be approved. 

CONCLUSIONS:

1.  The applicant’s discharge process was properly initiated but was not administratively correct.  

2.  This Board concluded that the applicant’s characterization of service is in 
error.  According to Army Regulations, then in effect, he could not receive a discharge of a lesser character than that recommended by a board of officers.  Since the board of officers recommended a general discharge, the separation authority was in error by approving a UD.

3.  However, the reason for discharge was proper and should not be changed

4.  In view of the foregoing, the applicant’s records should be corrected, but only, as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by showing that the UD the individual concerned received on 
12 June 1957 is void and is without force or effect; 

b.  by showing that the individual concerned was separated from the service with a general discharge on 12 June 1957; and

c.  by issuing to the individual concerned a General Discharge Certificate from the Army of the United States, dated 12 June 1957, in lieu of the discharge certificate of the same date now held by him.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__eb____  ___tap__  ___klw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Elizabeth Buchanon
		       CHAIRPERSON

INDEX

CASE ID	AR199030783	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000427	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19570612	
DISCHARGE AUTHORITY	AR635-208 	
DISCHARGE REASON	Unfitness, due to undesirable habits and traits of character	
BOARD DECISION	(Partial Grant)	
REVIEW AUTHORITY		
ISSUES         1.	A51.00	
2.		
3.		
4.		
5.		
6.