RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060012883 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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, on two separate applications, that his undesirable discharge (UD), characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable or to a general discharge.

2.  The applicant states, in effect, that he is unable to apply for State and Federal benefits, unable to vote, and unable to apply for various types of job, i.e., such as Federal jobs due to his UD.

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 27 January 1959, the date of his discharge.  The applications submitted in this case are dated 5 September 2006 and 14 November 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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty on 23 February 1956 and was trained in military occupational specialty (MOS), 153.17, Artillery Surveyor.   




5.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant’s DD Form 214 shows that on 27 January 1959, he was discharged under the provisions of Army Regulation 635-206, for misconduct-convicted or adjudged a juvenile offender by civil court during current term of active duty.  He was furnished an UD certificate.  He had a total of 2 years, 7 months, and 14 days of creditable service and 111 days of lost time. 

6.  Item 11c (Reason and Authority), of the applicant's DD Form 214, shows the entry "284", which is his "SPN" (Separation Program Number).

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.  Table 1, Enlisted Separation Program Designator Chart, of Army Regulation 680-3-2, in effect at that time, establishes the proper SPN codes to assign to soldiers separating from the Army.  This table confirms that the SPN of "284" is the appropriate code for individuals discharged for misconduct-convicted or adjudged a juvenile offender by civil court during current term of active duty.

9.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.  

10.  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.

11.  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, 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 facts and circumstances pertaining to his discharge are unavailable for review. 

3.  It is apparent that his discharge was based on his misconduct and his conviction and being or adjudged a juvenile offender by civil court during his current term of active duty.  Therefore, there is insufficient basis to support his request for an upgrade of his UD.

4.  The Board noted that the applicant's record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service; therefore, Government regularity is presumed in the discharge process.  

5.  The applicant contends that he is unable to apply for State and Federal benefits, unable to vote, and unable to apply for various types of jobs, i.e., such as Federal jobs due to his UD.  The applicant is advised that the Board does not change the character of service for the purpose of enabling former service members to obtain eligibility for benefits.  

6.  The applicant's desire to have his UD upgraded to honorable in order to apply for various types of job, such as Federal jobs, is acknowledged; however, the Board does not grant relief solely for the purpose of an applicant to obtain better employment opportunities.

7.  The applicant’s DD Form 214 shows that he accumulated a total of 111 days of lost time.  An absence of this duration is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his UD.  

8.  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.



9.  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.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 January 1959; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 January 1962.  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

___J____  ___LDS__  __RSV__  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.




_____Linda D. Simmons______
          CHAIRPERSON


INDEX

CASE ID
AR20060012883
SUFFIX

RECON

DATE BOARDED
2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19590127
DISCHARGE AUTHORITY
AR 635-206
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.