RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060000290


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 on or about 1955 he received an
honorable discharge, under general amnesty.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 July 1952, the date of his discharge.  The application
submitted in this case is dated 20 December 2005.

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 were lost or destroyed in the National
Personnel Records Center fire of 1973.  Records were obtained from
alternate sources and show that he was inducted and entered active duty
(AD) on 29 November 1950, as a smoke generator operator (4731).

4.  In accordance with his plea, he was found guilty by a special court-
martial on 28 May 1951, of being absent without leave (AWOL) from 19 April
to 23 May 1951.  His sentence consisted of confinement at hard labor for
3 months and a forfeiture of pay.  His sentence was adjudged on 28 May 1951
and approved on 1 June 1951.  Special court martial orders pertinent to the
applicant's conviction and sentence show he had one previous court-martial
conviction that was considered during the sentencing phase.  A copy of
orders pertinent to his previous conviction are not available for the
Board's review.




5.  All the documents containing the facts and circumstances surrounding
the applicant's discharge are not present in the available records.
However, the available records contain a partially burned copy of his DD
Form 214 (Report of Separation from the Armed Forces of the United States)
which shows that on 3 July 1952, he was discharged under the provisions of
Army Regulation 615-368, for unfitness, in pay grade E-1.  He was furnished
an UD.  He had a total of 10 months of creditable service.

6.  The available records contain no evidence to show that on or about
1955, the applicant received an honorable discharge, under general amnesty.

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

8.  Army Regulation 615-368, in effect at the time, set forth the basic
authority for the separation of enlisted personnel by reason of unfitness.
That regulation
provided for the discharge of individuals who had demonstrated their
unfitness
by giving evidence of undesirable habits of character manifested by
misconduct.
At the time of the applicant’s separation, the regulation provided for the
issuance of an undesirable discharge.

9.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

10.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s administrative separation was accomplished in compliance
with applicable regulations, with no procedural errors, which would tend to
jeopardize his rights.
2.  The applicant’s record is void of facts and circumstances concerning
the events that led to his discharge from the Army.

3.  The Board noted that the applicant’s record contains a copy of his DD
Form 214.  This document listed his authority for separation as Army
Regulation     615-368.  The Board presumed Government regularity in the
applicant's discharge process.

4.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

5.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that on or about 1955 he received an honorable
discharge, under general amnesty.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 July 1952; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 July 1955.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RDG___  __PMS__  __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.




                                  _____Paul M. Smith______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000290                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19520703                                |
|DISCHARGE AUTHORITY     |AR  615-368                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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