IN THE CASE OF: BOARD DATE: 18 March 2010 DOCKET NUMBER: AR20090014102 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 upgrade of his undesirable discharge to a general, under honorable conditions discharge. 2. The applicant states that he was a wheeled vehicle mechanic. However, his battery commander wanted everyone in the battery to become proficient as an artilleryman. When he requested to be excused from that training due to his hearing profile, his battery commander ridiculed him and, later, refused to let him transfer to another company. 3. The applicant explains the events which led to his court-martial; professes his innocence of any wrongdoing; states that his court-martial conviction was vacated and he was released from the stockade, charges that his commander was infuriated when his court-martial conviction was vacated; and that his commander harassed him thereafter. 4. The applicant provides documents which he lists in his application. 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 military records are not available for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed that the applicant’s records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant to conduct a fair and impartial review of this case. 3. The applicant's military records show that he enlisted in the Regular Army (RA) on 22 November 1954 and was awarded military occupational specialty (MOS) 630.00 (automotive maintenance helper). 4. On 21 September 1956, Special Court-Martial Order Number 175, published by Headquarters, Seventh U.S. Army, disapproved the findings of guilty and its specification of Charge I against the applicant and directed that all rights, privileges, and property of which the applicant was deprived by virtue of that portion of the findings so disapproved would be restored. 5. On 18 January 1957 the applicant was given an undesirable discharge under Army Regulation 635-208 (Personnel Separations-Discharge-Undesirable Habits and Traits of Character), for unfitness. He had 2 years, 1 month, and 13 days of creditable service and 34 days of lost time. 6. Neither the applicant's court-martial record nor his separation packet is available for the Board's review. A staff member of the Board informed the applicant that his military records were not available on 6 January 2004 and again on 11 February 2009. The applicant resubmitted his request believing that there was sufficient evidence in which to consider his case. DISCUSSION AND CONCLUSIONS: 1. This Board starts its consideration of a case with a presumption of regularity, that what the Army did was correct. It is up to the applicant to prove otherwise. 2. In this case the applicant contends that his commander violated his physical profile restrictions and harassed him, but has not submitted any evidence to support his contentions. 3. Special Court-Martial Order 175 submitted by the applicant only shows that one charge and its specifications were disapproved. However, since the court-martial order which depicted the findings and sentence of the applicant's trial was not provided to the Board, it is not known how many charges and specifications the applicant was specifically found guilty of. 4. The applicant’s discharge packet is not available. However, in the absence of evidence to the contrary a presumption of regularity is made and it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. As such, there is insufficient evidence on which to grant the applicant's requested relief. 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) AR20090014102 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090014102 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1