RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060009478


	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.




	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 that his Undesirable Discharge (UD) be upgraded to an under honorable conditions discharge.

2.  The applicant states he spent 7 good years in the Army and has an Honorable Discharge from his first enlistment.  He states he went to war and, thereafter, could not take the pressure, so he went AWOL (absent without leave).

3.  The applicant provides:

	a.  A WD AGO Form 53, Enlisted Record and Report of Separation Honorable Discharge.

	b.  A DD Form 214, Report of Separation From The Armed Forces of The United States.

	c.  Two NA Forms 13038, Certificate of Military Service.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 October 1955.  The application submitted in this case is dated 28 June 2006.

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.

4.  The applicant's WD AGO Form 53 is illegible in parts; however, it appears he enlisted in the Regular Army on 16 August 1946.  His separation date is illegible, but he had 2 years, 11 months, and 16 days of longevity for pay purposes.  It is estimated his separation date is 2 August 1949.  

5.  The applicant received an Honorable Discharge from his first period of service, although he did have 4 days of lost time due to AWOL.

6.  Following the outbreak of the Korean War, the applicant reenlisted for 3 years on 25 July 1950.  He received an Honorable Discharge on 8 May 1953, and reenlisted for 3 more years on 9 May 1953.  During his final reenlistment, he was AWOL for 197 days.

7.  The applicant went before a board of officers on/about 28 September 1955, ostensibly to determine whether he should be retained in service or discharged.  On 18 October 1955, he was discharged with a UD.  His DD Form 214 shows he had 7 years, 7 months, and 26 days of total creditable service.  The separation authority for his UD is not completely legible, but appears to be Army Regulation (AR) 615-368.

8.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for reasons of unfitness.  The regulation provided, in pertinent part, that members guilty of repeated misconduct were subject to separation.  A UD was normally considered appropriate.

9.  There is no record of the applicant having petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade within that board's 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records were apparently lost in the 1973 National Personnel Records Center fire.  What few records exist indicate he had honorable service for approximately 5 years.  However, his last period of service was marked by a lengthy period of AWOL, for which he received a UD following and administrative separation hearing before a board of officers.

2.  Separations for repeated incidents of misconduct resulted in issuance of a UD during the period of the applicant's service.  Regularity is presumed in the applicant's discharge process and it is presumed the UD was appropriate.

3.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 October 1955; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
17 October 1958.  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

__jea___  __jlp___  __eem___  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.



							James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060009478
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19551018
DISCHARGE AUTHORITY
AR 615-363
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.