RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060010845 


	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. Gerard W. Schwartz

Acting Director

Ms. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. Thomas M. Ray

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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 that his Undesirable Discharge, characterized as under other than honorable conditions, be upgraded to honorable. 

2.  The applicant states, in effect, that he was young and did not fully comprehend the lifelong results of his actions.  He has since his discharge been an upstanding citizen.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a copy of his Undesirable Discharge Certificate; a self-authored statement; and five letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 January 1957, the date of his discharge from the Army.  The application submitted in this case is dated 29 May 2006, and received on
2 August 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 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 to conduct a fair and impartial review of this case.  

4.  The applicant's DD Form 214 shows that he served in the Regular Army from 24 February 1955 through 26 January 1957.  He was discharged under the provisions of Army Regulation 635-208, by reason of unfitness, with an Undesirable Discharge.  His DD Form 214 shows his service was characterized as under other than honorable conditions.  He was credited with 1 year, 
9 months, and 28 days of active military service.

5.  The specific facts and circumstances surrounding the applicant's discharge are not contained in the record.  However, his DD Form 214 shows he has
51 days of lost time.

6.  The applicant submitted a self-authored statement indicating that he was exposed to the opportunity of drinking alcohol without any restrictions and that was his biggest problem.  He was stationed in Germany where drinking was much easier and he got into heavy drinking.  He states that he received two summary court-martials and one special court-martial.  He now believes he should have received a medical discharge because of his drinking problem.  Since his discharge, he married, had three children, and got his drinking problem under control.  He eventually quit drinking, raised his children who have all married and are productive citizens.  He owned and operated a transmission service for over 30 years in Des Moines, Iowa.  He was married for 45 years, and his wife passed away in December 2004.  He credits his personal relationship with God for his success in life.  

7.  The applicant submitted a letter of reference from a friend who has known him since 1968 and worked with the applicant before he started his own business.  He attests to the applicant's honesty and considers him a great asset to the community and his friends.

8.  The applicant provided a letter from his pastor.  He first met the applicant when he used his transmission services.  He officiated at the applicant's wife's funeral.  He states that the applicant has been like a father he never knew; the applicant helps him with home projects; and they are inseparable.  He attests that the applicant is an honorable citizen, loves his country, and is a good Christian.

9.  The applicant submitted a letter from a friend who states the applicant worked for his father back in the early 1960's before the applicant started his own transmission service.  He attests to the applicant's reputation as an honest business man.

10.  The applicant provided a letter from a friend who is a deputy sheriff in Des Moines.  He states that he has known the applicant his whole life.  The applicant acted as a mentor and father figure, he relies on the applicant for advice and guidance.  The applicant has a reputation of being a good friend and respected individual in his community.


11.  The applicant provided a letter from a neighbor who has known him since 1975.  She indicates that the applicant's children are all successful; one owns his own plumbing business; one is a part-owner of an architectural business; and his daughter, attended Iowa State and is now a stay-at-home Mom.  He has 10 grandchildren.  She states the applicant worked hard his whole life, helped his friends and neighbors in need, and is considered a model citizen.  

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

13.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a)  frequent incidents of a discreditable nature with civil or military authorities; b)  sexual perversion; c)  drug addiction; d)  an established pattern of shirking; and/or e)  an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  Army Regulation 635-200, paragraph 3-7a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  Army Regulation 635-200, paragraph 3-7b, 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.  The applicant's records were not available for the Board's review.  The only document available for the Board's review was his DD Form 214.  This document shows the applicant was separated under the provisions of Army Regulation 
635-208, by reason of unfitness.  The applicant states that he received at least three court-martials and that he had a drinking problem because alcohol was easily available.

2.  The applicant provided sufficient evidence to support his contention that he has been a productive citizen since his discharge from the Army.  However, 
post-service conduct is an insufficient basis upon which to grant an upgrade of the applicant's discharge.  Further, in the absence of evidence showing the nature or type of misconduct the applicant committed while in the Army, the Board is compelled to presume regularity in the discharge process.  Therefore, it is presumed that his type of discharge was appropriate.

3.  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 did not submit any evidence that would satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 January 1957; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
25 January 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

__tmr___  __jcr___  __jrh___  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.



							Thomas M. Ray
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060010845
SUFFIX

RECON

DATE BOARDED
20070301
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19570126
DISCHARGE AUTHORITY
AR 635-208 .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.5000
2.

3.

4.

5.

6.