RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060013824 


	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:


Mr. Curtis L. Greenway 

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 general discharge, under honorable conditions, be upgraded to honorable. 

2.  The applicant states, in effect, that he took his punishment and served his country in Korea.  His life has changed full circle since he went to Korea.  He adds that he loves his country.  He received medals for his service.  He went absent without leave (AWOL) after basic training. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), two statements from family members, a copy of his marriage license, a copy of a certificate of recognition and appreciation awarded to him, by the Veterans of Foreign Wars Political Action Committee, and a copy of a certificate, from the Grand Lodge of the International Association of Machinists and Aerospace Workers, which awarded him a Gold Veteran's Badge, for his 30 years of service, in  support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 9 March 1955, the date of his discharge.  The application submitted in this case is dated 13 September 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 reconstructed military records show he entered active duty (AD) on 7 March 1951, for 3 years, with an established expiration of term of service (ETS) of 6 March 1954.  He was trained in military occupational specialty (MOS), 5832, Supply Handler.  He was advanced to pay grade E-2 on 6 July 1951.  He completed 1 year, 4 months, and 21 days of foreign service. 

5.  He was convicted by two summary and two special courts-martial of being AWOL from 17 to 24 April 1951, from 4 June to 10 June 1951, from 2 to 22 October 1951, and from 22 January 1952 to 14 April 1952.  His sentences consisted of confinement at hard labor, forfeitures of pay, and restriction.

6.  Section 12 (Time Lost Under AW [Articles of War] and Subsequent to Normal Date of Expiration of Term of Service), of his DD Form 230 (Service Record), shows he was also AWOL from 14 to 15 August 1953.

7.  The applicant submitted a copy of his DD Form 214 which shows that on 9 March 1955, he was discharged in pay grade E-2, under the provisions of Army Regulation 615-360, due to his ETS.  He was furnished a general discharge, under honorable conditions.  He had a total of 3 years of creditable service and 367 days of lost time due to AWOL and confinement. 

8.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, shows he was awarded the National Defense Service Medal; the United Nations Service Medal; and the Korean Service Medal, with two bronze service stars.

9.  There is no evidence 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 statements provided by the applicant's family members describe him as an outstanding citizen, who would help anyone in need, that he held a job for over 30 years, and that he is a dedicated and loving person.  His additional documents describe his involvement in community activities and that he completed 30 years of loyal service.   

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 615-360 (Enlisted Personnel/Discharge/General Provisions), in effect at the time, granted authority to certain commanders to order the discharge or release from active military service of enlisted and inducted persons prior to expiration of their term of service; set forth criteria governing the issuance of honorable and general discharge certificates; and provided references to all other regulations governing the separation from the service of persons enlisted, inducted, or ordered into the active military service.  Under this regulation, an honorable discharge certificate would be furnished when the individual met the following qualifications:  had character rating of at least "very good," had efficiency ratings of at least "excellent," had not been convicted by a general court martial, or had not been convicted by more than once by a special court martial.

13.  The regulation above continued by stating, in effect, that it was the policy of the Department of the Army to base evaluation of an individual's service and character on his overall enlistment period rather than on any disqualifying portion of his current service because the type of discharge could significantly influence the individual's civilian rights and eligibility for benefits provided by law.  It was essential, the regulation stated, that all pertinent factors be considered so that the type of discharge would accurately reflect the nature of the service rendered.

DISCUSSION AND CONCLUSIONS:

1.  At the time of the applicant's discharge, commanders had broad authority with regards the discharge process.  The service of individuals who reached the expiration of their term of service was evaluated.  Individuals who received rating of "very good" and "excellent," who had not been convicted by a general court-martial, and who had not been convicted by more than one special court-martial were normally awarded an honorable discharge.

2.  It is apparent that the applicant’s discharge was based on his established pattern of misconduct, which included two summary and two special courts-martial, for AWOL.  Therefore, based on the criteria established in applicable regulations, he did not qualify for an honorable discharge.

3.  The evidence of the available record shows that the applicant accumulated a total of 367 days of lost time due to AWOL and confinement.  At the time of his discharge, it was determined he did not deserve an honorable discharge.  An absence of this duration is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his general discharge.  

4.  The applicant’s contentions and allegations were considered; however, they do not support an upgrade of his general discharge.

5.  The available records were reviewed.  The applicant's recognition he received while he served in Korea were considered; however, these were not sufficiently mitigating to warrant an upgrade of this discharge.

6.  The statements and additional documents provided by the applicant in support of his request for an upgrade were considered: however, they are not sufficiently mitigating to warrant an upgrade of his general discharge, under honorable conditions, to honorable.

7.  There is no evidence in the available 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.

8.  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.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 March 1955; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 March 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

_MJF____  ___EM__  __CLG __  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.




____Curtis L. Greenway _____
          CHAIRPERSON




INDEX

CASE ID
AR20060013824
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070412
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19660309
DISCHARGE AUTHORITY
AR . 615-360 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.