RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 November 2003
         DOCKET NUMBER: AR2003090847

         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. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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 was under the impression that his discharge would be upgraded six months after his discharge, but he could not get it changed.

3. The applicant provides a copy of his separation document (DD Form 214) and UD certificate, a letter from his employer, dated 25 February 1972, and a supporting letter from his spouse.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of the UD he received on 29 February 1956. The application submitted in this case is dated 29 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. This case is being considered using reconstructed records, which primarily consist of the applicant’s separation document and the record of discharge review by the Army Discharge Review Board (ADRB) on 11 December 1959 and a reconsideration hearing held by the ADRB on 18 April 1962.

4. The available evidence shows that the applicant entered active duty in the Army on 28 August 1952. He served on active duty until receiving an UD on
29 February 1956. His DD Form 214 shows that he was separated under the provisions of Army Regulation 615-368, by reason of misconduct, and that he had accrued 300 days of time lost while serving on active duty.

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5. The applicant’s DD Form 214 confirms that he completed 1 year, 1 month, and 8 days of foreign service and that during his active duty tenure he earned the following awards: National Defense Service Medal; Korean Service Medal with
2 bronze service stars; United Nations Service Medal; and the Combat Infantryman Badge.

6. The ADRB hearing records confirm the applicant’s case was considered twice, first on 9 December 1959 and again on 17 April 1962. In both cases, the applicant’s request for an upgrade to his discharge was denied. Both ADRB reviews determined that the applicant’s discharge was proper and equitable based on his extensive record of misconduct, which included his conviction of being absent without leave (AWOL) by a summary court-martial on 26 January 1955, and his three separate convictions of being AWOL by special court-martial on the following dates: 17 September 1954; 12 April 1955, and 30 January 1956.

7. The applicant provides a letter of support from a previous employer, dated
25 February 1972, that was submitted to a Member of Congress. In this letter, the employer, who was the hospital contract representative for the Veterans Administration (VA) Center, Dublin, Georgia, indicated that the applicant had been periodically employed under the wage contract program as a painter at the VA center and on each occasion had been offered a civil service position for the same employment. However, when the type of discharge the applicant received was discovered, the employment offers were withdrawn. The employer indicated that he and some mutual friends of the Member of Congress were very interested in seeing the applicant’s discharge review favorably considered.

8. The applicant’s wife also provided a letter supporting the applicant’s request. In it she comments that the applicant has been a good husband and father during the over 26 years they have been married. She also comments on the circumstances surrounding the applicant’s discharge, as they were presented to her by the applicant. The applicant’s wife also states that the applicant is in bad health and deserves to have his discharge upgraded. She further states that her husband served in Korea and understood that his discharge would be upgraded six months after he was separated. She also comments that the applicant had repeatedly tried to have the discharge upgraded, but has been unsuccessful. She concludes by commenting that the applicant is dying of lung cancer and wishes to die honorably with a flag on his casket.

9. Army Regulation 615-368, 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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10. 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 ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final action by the ADRB. In complying with this decision, the Board 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 claim that his discharge should be upgraded because he was under the impression it would be upgraded within six months of his separation and the supporting documents presented, which indicate he is in poor health and wishes to die honorably were carefully considered. However, while there is empathy for his health problems, none of the factors presented are sufficiently mitigating to warrant an upgrade to his discharge at this late date.

2. The evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. Lacking evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the character of his discharge accurately reflects his overall record of service.

3. In addition, in regard to the applicant’s claim that it was his understanding that his discharge would be upgraded within six months, he is advised that the Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an application is submitted to either the ADRB or this Board.

4. The evidence shows that the applicant’s case was considered by the ADRB on two separate occasions and in both cases it was found to be proper and equitable. No new evidence or factors have been presented with this application that would support a different decision at this time.

5. Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 17 April 1962. As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 17 April 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.

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BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_ _MM___ __JS___ __BE__ 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.




                  John N. Slone
         CHAIRPERSON

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INDEX

CASE ID	AR2003090847
SUFFIX
RECON
DATE BOARDED	2003/11/DD
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1956/02/29
DISCHARGE AUTHORITY	AR 615-368
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.