RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060010796 


	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
	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, upgrade of his undesirable discharge. 

2.  The applicant states, in effect, his discharge should be upgraded because he spent 15 months in Korea.  When he received his discharge he was told it would be reinstated in 6 months from the time of release.  He attended boot training at Camp Chafee, Arkansas, and then went over to Korea.  He was assigned to Company B, 7th Armor Division, 49th Field Artillery.  He came home on the SS General Mitchell and was sent to Fort Sill, Oklahoma.  He went absent without leave and was then sent to Fort Leonard Wood, Missouri, where he was discharged. 

3.  The applicant provides copies of his Certification of Military Service in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 February 1957, the date of his separation from active duty.  The application submitted in this case is dated 15 July 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 available records show the applicant entered into the United States Army on 4 February 1954.

5.  On 5 February 1957, Headquarters, Fort Leonard Wood, issued Special Orders Number 25, separating the applicant from active duty with an undesirable discharge, in pay grade E-1, on 6 February 1957, under the provisions of Army Regulation 635-208, paragraph 1c.  The available records do not contain a copy of his separation document.

6.  On 25 April 1990, the National Personnel Records Center, National Archives and Records Administration (NARA), St. Louis, Missouri, issued a Certification of Military Service, in the absence of a copy of the actual Report of Separation or its equivalent.

7.  The applicant submits a copy of a Certification of Military Service, dated 30 January 1998, issued to him by NARA.  This certificate shows the same information as the certificate dated 25 April 1990.

8.  Army Regulation 635-208, then in effect, provided in pertinent part, the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  An undesirable discharge was normally issued.

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

10.  The applicant asserts that when he received his discharge he was told it would be "reinstated" in 6 months from the time of his release.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, also 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.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions are noted; however, there is no evidence, and the applicant has provided none, to support his contentions.  

3.  Since all documents pertaining to the applicant's discharge are not on file in the available record, in the absence of evidence to the contrary, Government regularity must be presumed and 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.

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.  Contrary to the applicant assertion that he was told his discharge would be "reinstated" after six months from the time of his release, the Army does not have and it has never had a policy for the automatic upgrade of discharges to honorable after passage of a prescribed period of time.

6.  In order to justify correction of a military record, the applicant must show, 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 February 1957, the date of his discharge from active duty; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 February 1960.  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

___A____  ___JLP__  __EM___  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
AR20060010796
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19570206
DISCHARGE AUTHORITY
AR635-208, paragraph 1c
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.00
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060010796


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508