IN THE CASE OF: BOARD DATE: 11 May 2010 DOCKET NUMBER: AR20090018842 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 his undesirable discharge be upgraded. 2. The applicant states: * his discharge was unfair * he told a colonel he did not want to be discharged * he wanted to stay in the Army * he did not want a bad discharge * he was a young kid with many family problems * he just needed someone to help him 3. The applicant provides no documentary evidence in support of 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 to the Board. 3. The Army Discharge Review Board (ADRB) proceedings indicate the applicant was inducted on 16 April 1954. The ADRB proceedings state morning reports indicate the applicant was absent without leave at least once, he received one summary court-martial conviction and one special court-martial conviction, and he spent time in confinement. 4. The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. 5. There is no DD Form 214 (Report of Transfer or Discharge) in the available records. His records do contain a Certification of Military Service which shows he was discharged on 20 January 1955 with an undesirable discharge. 6. On 21 June 1982, the ADRB denied the applicant's request for a discharge upgrade. These proceedings point out: * the applicant was 17 years old when he was inducted * the discharge authority, regulation at separation, narrative reason, and facts and circumstances were not found in the record * the applicant was at Fort Leonard Wood, MO * the amount of training he completed cannot be determined * the sparse records do not permit determination of creditable service * the applicant did not have 6 months of creditable service. 7. Army Regulation 635-200 governs 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. 8. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: The applicant's contentions were noted. However, in the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, 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) AR20090018842 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090018842 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1