RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 May 2005
      DOCKET NUMBER:  AR20040006012


      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 J. Wagner             |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, that his undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, that he has a clean record with the
West Virginia Army National Guard (WVARNG).  He further claims that he
could have been great in the Army as a member of the ARNG if he had not
been moved around so much.  He claims that he never had the chance to
settle down.

3.  The applicant provides a letter of support from a prior WVARNG
commander in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 March 1956.  The application submitted in this case is
dated
16 August 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 limitations 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 that primarily consist of a WVARNG
separation report (NGB Form 22) and active duty separation document (DD
Form 214).

4.  The applicant’s NGB Form 22 shows that he enlisted in and entered the
WVARNG on 25 August 1949.  He served in that status for 4 years until being
honorably discharged, at the expiration of his term of service (ETS), on
24 August 1953.  This document further confirms that he held the rank of
corporal on the date of his discharge.

5.  The specific facts and circumstances surrounding the applicant’s active
duty discharge processing are not available for review.  The evidence does
include a properly constituted DD Form 214 that contains the authority and
reason for the applicant’s active duty discharge.  This document was
authenticated by the applicant with his signature in Item 48 (Signature of
Person Being Separated).

6.  The applicant’s DD Form 214 shows that he was inducted into the Army
and entered active duty on 5 January 1955.  This document further shows
that at the time of his separation, he held the rank of private/E-1 (PV1).
If also shows that he completed a total of 6 months and 22 days of
creditable active military service and accrued 223 days of time lost.

7.  The applicant’s separation document also confirms that on 6 March 1956,
he was separated under the provisions of Army Regulation 615-368, by reason
of unfitness and that he received an UD.

8.  The applicant’s unit commander in the WVARNG, a retired Army captain,
provides a statement in support of the applicant.  He states that the
applicant was an exemplary Soldier during the two years he served in his
command during weekend drills and summer camp.  He states that he promoted
the applicant to corporal and was very happy with his service.

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

10.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his honorable WVARNG service and clean
record and the supporting statement provided by his former commander were
carefully considered.  However, these factors are not sufficiently
mitigating to warrant an upgrade of the applicant’s discharge at this late
date.

2.  The applicant’s honorable service in the WVARNG is accurately and
adequately documented in the NGB Form 22 on file in his record.  As a
result, this factor alone does not support upgrading his subsequent active
Army discharge.

3.  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 from active duty.  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.  This document carries a presumption of
Government regularity in the discharge process.

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.  Further, the DD Form 214
clearly shows the applicant accrued 233 days of time lost.  As a result, it
appears the UD he received accurately reflects his overall record of active
duty service.

5.  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.

6.  The evidence shows the applicant should have discovered the alleged
error or injustice now under consideration on 6 March 1956.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on 5 March 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

___RJW _  ___BJE _  ___LMD_  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.




            ____Raymond J. Wagner__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006012                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/19                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1956/03/06                              |
|DISCHARGE AUTHORITY     |AR 615-368                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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