| Mr. Carl W. S. Chun | Director | |
| Ms. Gale J. Thomas | Analyst |
| Mr. Raymond V. O’Connor | Chairperson | |
| Mr. John P. Infante | Member | |
| Mr. William D. Powers | Member |
APPLICANT REQUESTS: In effect, that his records be corrected by upgrading his undesirable discharge. The applicant states, via his Veterans Service Manager, that he was drafted with a physical disability (digital thumbs), served his country in combat, and would not have been charged with being absent without leave (AWOL), curfew violations or court-martial convictions if he had been correctly medically classified and sent home, and at the very least his discharge should be upgraded to a "General under Honorable Conditions." In support of his request he submits a statement from his physician indicating he has bilateral digitalized thumbs, a congenital disorder he was born with.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained form alternate sources.
On 2 April 1951, the applicant was inducted into the Army of the United States for a period of 2 years.
The applicant’s entrance medical examination indicates he failed the Armed Forces Qualification Test, that he had 10 years of civilian education in Puerto Rico, that he could read and write English. He was found qualified for military service.
On 4 February 1952, he was convicted by a summary court-martial of three specifications of curfew violations. He was sentenced to a forfeiture of pay.
On 4 November 1952, he was convicted by a special court-martial of being AWOL from 9 August to 5 October 1952. He was sentenced to confinement at hard labor for two months, a forfeiture of pay and reduction to pay grade E-1.
On 15 April 1953 and 22 December 1953 he was convicted by separate special courts-martial of being AWOL from 9 January 1953 to 8 April 1953, and from
3 July 1953 to 8 December 1953. He was sentenced to confinement at hard labor for six months and a forfeiture of pay for six months for each trial conviction.
On 4 January 1954, a medial examination found the applicant had no disqualifying mental or physical defects sufficient to warrant a disability separation. The examination noted that the applicant had an appendectomy while in Korea. It also noted that he was able to distinguish right from wrong and adhere to the right.
On 11 January 1954, the applicant’s commander requested that he appear before a board of officers convened under the provisions of Army Regulation 615-368, to determine if he should be discharged from military service. The commander’s request was based on the applicant’s record which revealed various infractions of rules and regulations which were prejudicial to good order and military discipline. The commander felt that the applicant’s expeditious separation from the service was in the best interest of the Army.
On 18 January 1954, the administrative board of officers found the applicant unfit for further military service, and recommended that he be separated under the provisions of Army Regulation 615-368, for unfitness, with an undesirable discharge.
On 25 January 1954, the appropriate separation authority approved the findings and recommendation of the board.
On 3 February 1954, the applicant was discharged under the provisions of the above cited regulation and issued an undesirable discharge. His DD Form 214 (Report of Separation from the Armed Forces of the United States) indicates he had 1 year, 8 months and 9 days of creditable service and 133 days of lost time.
Army Regulation 615-368, in effect at the time, set forth the policy and procedures for separation of enlisted personnel for unfitness. Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends. When rehabilitation was deemed unsuccessful, impractical or inappropriate and separation for unfitness was warranted, discharge was normally under other that honorable conditions and an undesirable discharge certificate was issued.
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
The evidence of record indicates he did not have any medically unfitting disability which required physical disability processing.
There is no evidence in the applicant’s available records to substantiate his claim that his medical condition (digital thumbs) was the cause of his receiving an undesirable discharge and there is no evidence it was medically disqualifying.
The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant’s overall record of military service.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 3 February 1954, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 3 February 1957.
The application is dated 11 May 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__RVO__ __JPI ___ __WDP__ CONCUR WITH DETERMINATION
| CASE ID | AR2001059810 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20011129 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 142.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2011 | 20110023449
The applicant states that he enlisted in the Regular Army in 1952 and served for almost 2 years and was unjustly given an undesirable discharge because he was unable to read. Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness. _______ _ _ 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...
ARMY | BCMR | CY2010 | 20100008071
On 15 July 1954, his 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 applicant's fitness for retention. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 615-368 with an undesirable discharge. The regulation stated that discharge, if recommended, would be for unfitness,...
ARMY | BCMR | CY2002 | 2002074741C070403
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. APPLICANT STATES : In effect, that he finished his tour of duty and served 6 months of confinement, as a result of a special court-martial. On 14 January 1954, the applicant’s commander initiated a request to have the applicant appear before a board of officers to determine if he should be discharged under the provisions of Army...
ARMY | BCMR | CY2008 | 20080011763
The board found that the applicant gives evidence of habits and gives evidence of traits of character which rendered retention in the service undesirable and recommended that the applicant be discharged from the service because of unfitness and that he be furnished an undesirable discharge. Evidence of record shows the applicant completed 3 years, 3 months, and 9 days of creditable active service when he was discharged. Although the applicants daughter contends that they have no...
ARMY | BCMR | CY2013 | 20130009184
The applicant requests the characterization of service of her deceased husband, a former service member (FSM), be upgraded from an undesirable discharge to an honorable discharge. On 14 November 1954, his 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 applicant's fitness for retention. On an unknown date in...
ARMY | BCMR | CY2006 | 20060003453C070205
Army Regulation 615-368, also stated, in pertinent part, that a board of officers would recommend that the individual be either discharged because of unfitness, unsuitability, or retained in the service. It is also noted that the applicant now states he began drinking at the age of 12 and that alcohol was a large part of his life; however, his record of service shows that he served honorably and without any alcohol related incidents during the period 14 April 1948 to 13 April 1951. The...
ARMY | BCMR | CY2011 | 20110002340
He goes on to state that upon release from the 97th General Hospital in Frankfurt, West Germany he was released from the Army and his DD Form 214 (Report of Separation from the Armed Forces of the United States) reflects an undesirable discharge and it should read that he received an honorable discharge for medical reasons. The applicant's military records are not available for review. Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of...
ARMY | BCMR | CY2014 | 20140005503
He returned to the Continental United States in March 1954. d. In September 1954, he was convicted by an SPCM for being AWOL from 12 June to 4 September 1954. e. In February 1955, he was convicted by an SPCM for being AWOL from 24 January to 16 February 1955. f. In March 1955, while in confinement, the FSMs commanding officer requested the FSM be required to appear before a board of officers convened under the provisions of Army Regulation 615-368 (Undesirable Habits or Traits of Character...
ARMY | BCMR | CY2013 | 20130015955
He provides: * Self-authored statement * Report of Proceedings by a Board of Officers with an extract of time lost, statement and certificate by commanding officer, and outpatient index * Special Orders Number 190, dated 16 August 1954 * Special Orders Number 197, dated 24 August 1954 * Special Orders Number 184, dated 9 August 1954 * VA Form 686c (Declaration of Marital Status), dated 1 November 1954 * WD AGO Form 53 (Enlisted Record and Report of Separation Honorable Discharge) * Two DD...
ARMY | BCMR | CY2013 | 20130002193
The applicants military records are not available to the Board for review. A DA Form 37 (Report of Proceedings of Board of Officers), dated 10 February 1955, shows a board of officers convened on 8 February 1955 and recommended separating the applicant under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)). There is no evidence in the applicant's military service records and he has not provided evidence that shows...