RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 February 2005
      DOCKET NUMBER:  AR20040000865


      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. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Marla N. Troup                |     |Member               |
|     |Mr. Peter B. Fisher               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his under other than
honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states, in effect, that he would like to know if he is
eligible for medical and funeral benefits.  He claims that he was told he
would face a court-martial for conduct unbecoming an officer unless he
resigned from the service.  He states that he was confused and thinking of
his wife and children and as a result, he decided to resign.  He claims to
have been told that because his discharge was not dishonorable, he would
retain all his veterans’ rights.

3.  The applicant provides a self-authored statement and personal documents
attesting to his good post service conduct in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 February 1956.  The application submitted in this case
is dated
8 April 2004.

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.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.  This case is being
considered using reconstructed records, which primarily consist of the
applicant’s separation document (DD Form 214).

4.  The applicant’s DD Form 214 shows that he entered active duty as a
commissioned officer on 27 September 1954.  This document also indicates he
earned no awards or decorations and it documents no acts of valor,
significant achievement, or service warranting special recognition.

5.  The separation document further shows that on 19 September 1956, he was
separated from active duty with an UOTHC discharge after completing 1 year,

11 months and 23 days of active military service.  The authority for the
applicant’s separation was paragraph 4, Army Regulation 635-120 and the
narrative reason for his separation was for the good of the service, in
lieu of trial.

6.  There is no indication that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

7.  Army Regulation 635-120, in effect at the time, provided the policies
and procedures for officer resignations and discharges.  Paragraph 4
provided guidance on discharge for the good of the service.  It stated, in
pertinent part, that an officer whose conduct rendered him triable by court-
martial for an offense punishable by dismissal might tender his resignation
for the good of the service in lieu of trial by court-martial.  An UOTHC
discharge was normally considered appropriate for members separating under
this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge was unjust, that he
should be eligible for veterans’ benefits and the supporting documents he
submitted were carefully considered.  However, the factors presented are
not sufficiently mitigating to warrant an upgrade of his discharge at this
time.

2.  The available evidence is void of a discharge packet containing the
specific facts and circumstances concerning the events that led to the
applicant’s discharge.  However, there is a properly constituted DD Form
214 on file that was authenticated by the applicant with his signature.
This document identifies the reason and characterization of the discharge
and carries a presumption of Government regularity in the discharge
process.

3.  The separation document confirms the applicant elected to resign to
avoid a court-martial that could have resulted in his receiving a punitive
discharge.  Procedurally, prior to submitting a voluntary request for
resignation, the applicant would have consulted with legal counsel and been
informed of the effects of a voluntary resignation for the good of the
service in lieu of trial by court-martial and on the likely loss of Army
and veterans’ benefits.  The administration of medical and funeral benefits
is not within the purview of the Board.  These benefits are administered by
the Department of Veterans Affairs (VA).  The applicant is advised to
contact that agency regarding his entitlement to veterans’ benefits.

4.  Lacking evidence to the contrary, it is presumed that all requirements
of law and regulation were met and the rights of the applicant were
protected throughout the separation process.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 September 1956.  Thus, the time for
him to file a request for correction of any error or injustice expired on
18 September 1959.  However, he failed to 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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PBF    ___MJNT   ___HOF _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Hubert O. Fry________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000865                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/23                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1956/09/19                              |
|DISCHARGE AUTHORITY     |AR 635-120  Para 4                      |
|DISCHARGE REASON        |Resignation In Lieu of CM               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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