RECORD OF PROCEEDINGS


         IN THE CASE OF
        

         BOARD DATE: November 25, 2003
         DOCKET NUMBER: AR2003089810

         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.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2. The applicant states, in effect, that he entered the Army at the age of 17. He states that he completed basic combat training at Fort Knox, Kentucky and then successfully completed a leadership school. He was then assigned to and served in Berlin, Germany. He further states that in 1951, he reenlisted for six years, and in 1953, he volunteered to go to Korea. He served in Korea for one year and was advanced to the rank of sergeant first class (SFC). He also indicates that he completed the infantry noncommissioned officer (NCO) advanced course at Fort Benning, Georgia, the Berlin NCO school in Germany, and the 2nd Infantry Division NCO Academy in Korea. He also states that he presents these facts because it is important to understand the quality of his service up through the time of his discharge.

3. The applicant further states that in late 1955 or early 1956, he returned to Germany and was assigned to the 10th Infantry Division. In March of 1956, he was selected to join the German Training Assistance Group to help in the training of the newly reformed German Army. After this nine month tour of duty, he returned to his regular unit. A few weeks after his return, he was asked to become the first sergeant (1SG) of the 10th Infantry Division NCO Academy. He states that he accepted this assignment and retained it for five months until his discharge.

4. The applicant also provides an explanation of the circumstances surrounding his receiving an UD. He claims that he married a girl from Georgia, which was the beginning of his problems. He indicates that he let his personal problems interfere with his military duties, which he should not have let happen. He also states that after his discharge, he and his wife were divorced and he returned to Cape Gerardeau, Missouri to live. He states that after returning home, he remarried and has remained married for forty years. He further states that he has two children, two grandchildren, and three great grand-children. He claims that his wife now has Parkinson’s disease and the best gift he could present her would be an upgraded discharge.

5. The applicant concludes by stating that he was a proud and loyal soldier and is still a proud and honorable man. He indicates that he could provide any character references required, and he has nothing in his life to be ashamed of except his discharge.

6. The applicant provides a letter of commendation and promotion recommendation he received as a result of his service with the German Assistance Training Group and related endorsements.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of his discharge that occurred on
8 December 1959. The application submitted in this case is dated 21 April 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant’s 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. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. These reconstructed records primarily consist of the applicant’s separation document (DD Form 214) and the record of the 7 February 1962 Army Discharge Review Board (ADRB) review (OSA Form 172A) of the applicant’s case.

4. The ADRB review document on file indicates that the basis for the applicant’s discharge was his continued dishonorable failure to pay just debts. It further indicated that all efforts to assist the applicant proved useless and that instead of alleviating his old debts, he repeatedly created new ones. It further indicated that he was indebted to 16 different business establishments and willfully evaded making contact with his creditors. He further failed to fulfill agreements he made and did not follow established payment plans. It also stated that while the applicant’s performance of duty was usually satisfactory, he consistently showed the lack of desire to rehabilitate himself or to handle his personal affairs.

5. The OSA 172A also outlined the applicant’s disciplinary record, which included his conviction of failing to go to his appointed place of duty at the prescribed time by a summary court-martial; and his involvement in a motor vehicle accident while driving under the influence of alcohol. This document further indicated that the applicant was returned from his attached unit to his assigned unit because his indebtedness affected his duty performance. It also shows that he subsequently received a rehabilitative reassignment to another unit for this same reason.

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6. Finally, the OSA 172A shows that the applicant’s last unit commander indicated that he frequently counseled the applicant for his failure to pay just debts and the impact it would have on his military career. However, the applicant failed to respond to this counseling and ultimately his discharge was requested.

7. The ADRB review also confirms that during the discharge processing of the applicant, he waived his right to have his discharge case heard by a board of officers and elected not to make statements in his own behalf. On 24 November 1959, the separation authority approved the applicant’s discharge and directed that he receive an UD. On 8 December 1959, the applicant was discharged accordingly.

8. The DD Form 214 issued to the applicant on the date of his discharge confirms that he was discharged under the provisions of Army Regulation 635-208, by reason of unfitness, and that he received an UD. This document also shows that he completed 8 years, 6 months, and 23 days on the enlistment under review and a total of 11 years, 9 months, and 6 days of active military service. The applicant authenticated this document with his signature on the date of his separation.

9. On 7 February 1962, the ADRB reconsidered the applicant’s case that had been originally denied on 26 August 1960. After carefully reviewing the applicant’s case this second time, the ADRB again determined that the applicant’s discharge was proper and equitable, and it denied his reconsideration request to upgrade his discharge.

10. In support of his application, the applicant provides a letter of commendation and promotion recommendation, dated 13 December 1956, from his training team chief and the accompanying endorsements from members of the chain of command. These documents commended the applicant for his performance as a member of the infantry training team of the German Training Assistant Group, and recommended his promotion based on this duty performance.

11. Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness. An undesirable discharge was normally considered appropriate for members separating under these provisions.

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12. 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. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s request to have his discharge upgraded, the accompanying supporting documents he provided, and his overall record of service were carefully considered. However, his military record containing the specific facts and circumstances concerning the events that led to his discharge from the Army was not available for review.

2. The reconstructed record reviewed does contain a properly constituted
DD Form 214 that was authenticated by the applicant on the date of his separation. This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.

3. Lacking evidence to the contrary, it is determined that the applicant’s discharge processing was accomplished in accordance with the regulation in effect at the time. Further, all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

4. Notwithstanding his generally good service record, the available evidence further shows that the applicant was offered many opportunities for rehabilitation and failed to responsd. Further, when offered the opportunity to have his separation case heard by a board of officers, he elected to waive this right and not to make statements in his own behalf.

5. The evidence also shows that the ADRB reviewed the applicant’s case on
26 August 1960 and reconsidered it on 7 February 1962. After both reviews, the ADRB determined that the applicant’s discharge was proper and equitable. As a result, it twice voted to deny the applicant’s request to upgrade his discharge.

6. The evidence presented does not provide a basis to call into question the decisions of the ADRB. Further, the passage of time and good post service conduct alone do not provide an evidentiary basis to support upgrading the applicant’s discharge at this time.

7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

8. The available records show the applicant should have discovered the error or injustice now under consideration on or after 7 February 1962, the date the ADRB denied his request to upgrade his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
7 February 1965. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_LEM___ __YM__ __RO___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  Raymond V. O’Connor
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089810
SUFFIX
RECON
DATE BOARDED	2003/12/DD
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1959/12/08
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.