RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060015974 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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 an honorable discharge.

2.  The applicant states, in effect, that he is not so sure that his discharge document is in error; however, he is attempting to have his discharge upgraded. He also states, in effect, that he would like to have his discharge upgraded because he believes the U.S. Army changed his life for the better.

3.  The applicant provides a self-authored statement, dated 21 July 2006;
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 9 June 1959; Knights of Columbus, Bishop McDonnell Council Number 2324, Babylon, Long Island, New York, letter, dated 24 July 2006; Town Supervisor, Town of Stillwater, New York, letters, dated
22 April 2006 and May 2006; Office of the Mayor, Village of Stillwater, New York, letter, dated 5 May 2006; Deputy Director, New York State Emergency Management Office, letter, dated 21 May 2006; Arvin Hart Fire Company, Stillwater Fire District Number 1, Stillwater, New York, letter, dated 6 July 2006; The Connors Agency, LLC, Mechanicville, New York, letter, dated 16 July 2006; State of New York, Division of Criminal Justice Services, Municipal Police Training Council Certificate, dated 25 June 2006; DA Form 4250 (Certificate of Retirement), dated 1 August 1997; DA Form 4251 (Certificate of Appreciation), undated; Certificate in Recognition of 20 Years of Service, dated July 1997;
8 DA Forms 2443 (Department of the Army Certificates), spanning the period
1 December 1986 to 2 November 1996; DA Form 2200 (Department of the Army Certificate of Service), dated July 1987; and DA Form 4979 (Department of the Army Exceptional Performance Certificate), dated 2 March 1987.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 9 June 1959, the date of his discharge from the Army.  The application submitted in this case is dated 8 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.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  The applicant's military records were partially destroyed in that fire.  However, there were sufficient documents remaining for the Board to conduct a fair and impartial review of this case.

4.  The applicant’s reconstructed military service record contains a War Department (WD) Adjutant General Office (AGO) Form Number 24 (Service Record).  This document shows that he enlisted and entered active duty in the Regular Army (RA) on 18 December 1953.  He was trained in and awarded military occupational specialty (MOS) 140 (Field Artillery Basic).  The applicant departed the continental United States (CONUS) on 17 May 1954 for service in Germany.  The applicant was honorably discharged on 25 April 1956 for immediate reenlistment.

5.  On 26 April 1956, the applicant reenlisted in the RA for a period of 3 years.  He continued to serve in Germany until 26 April 1957 and was returned to CONUS on 4 May 1957.  The applicant's military service records show that he was awarded the National Defense Service Medal, Army of Occupation Medal with Germany Clasp, Expert Marksmanship Qualification Badge with Carbine Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

6.  The applicant's WD AGO Form Number 24, Section 6 (Time Lost Under Sec 6(a) APP 2b MCM 51 and Subsequent to Normal Date ETS), shows that the applicant was absent without leave (AWOL) from 20 June 1957 to 21 June 1957, AWOL from 11 August 1958 to 7 September 1958, and in confinement from
10 September 1958 to 24 September 1958.

7.  The applicant's military service records contain a DD Form 214, with an effective date of 9 June 1959.  This document shows that the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-250 and Army Regulation 635-200 based upon expiration term of service.  At the time of his discharge he had completed 3 years, 1 month, and 14 days active service during the period of service under review and a total of 5 years,
5 months, and 22 days active service.  His DD Form 214 also shows that at the time of his discharge he had 45 days lost under Section 6a, Appendix 2b, Manual for Courts Martial (1951) and Act of May 1950.

8.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

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

10.  In support of his application, the applicant provides a self-authored statement in which he briefly describes his service in the Army and offers a summary of his post-service accomplishments.  He also provides 7 letters from various officials, including the Service Officer of the Knights of Columbus, Council Number 2324, Babylon, Long Island, New York; Town Supervisor of the Town of Stillwater, New York; Mayor of the Village of Stillwater, New York; Deputy Director, New York State Emergency Management Office; Fire Chief, Arvin Hart Fire Company, Stillwater Fire District Number 1, Stillwater, New York; and an Agent of The Connors Agency, LLC, Mechanicville, New York.  These letters attest to the applicant's good character and dedication while serving in various positions of trust and responsibility, service to the community, and role as a model citizen in the community.  The applicant also provides 14 certificates that span the period of time from 23 November 1987 to 25 June 2005.  These certificates attest to the applicant's exceptional performance, professional competence, and dedication as a Crane Operation; recognition and appreciation for his contributions during 20 years of Government service; and completion of training for part-time police officers.

11.  Army Regulation 635-200 (General Provisions for Discharge and Release), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers, and factors governing the issuance of the DD Form 214 (Report of Separation from the Armed Forces of the United States) and honorable, general, and undesirable discharge certificates.

12.  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 Soldier’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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.
14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge under honorable conditions should be upgraded to an honorable discharge because the U.S. Army changed his life for the better and he offers his post-service record of accomplishments in support of his claim.

2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, Chapter 1 (General Provisions), which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record shows that, during the period of service under review, the applicant completed 3 years, 1 month, and 14 days active service and he had 45 days lost time.  Thus, the evidence of record shows that the applicant's overall quality of service during the period of service under review was not sufficiently meritorious to warrant an honorable discharge, which is a discharge that is issued to a Soldier who generally has met the standards of acceptable conduct and performance for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

4.  The applicant’s post-service accomplishments and service to his community is acknowledged and commendable.  However, good post-service conduct alone is not a basis for upgrading a discharge.

5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 June 1959; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 June 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

___LDS__  ___JRS _  ___CAD_  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
AR20060015974
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/05
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1959MMDD
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Expiration of Term of Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.