RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070009148 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Gerald J. Purcell

Member

Mr. John Heck

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 undesirable discharge (UD) be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that there was no injustice on the Army’s fault; probably just a mistake.  

3.  The applicant provides an additional letter in support of his request.  He states that he has written letters numerous times trying to get his discharge reinstated.  According to the VA (Veterans Administration), he was never in the Army.  He is 74 years old and before he dies he would surely appreciate and love to have an honorable discharge.  

4.  He states that he enlisted on 11 November 1950 and was separated with an undesirable discharge for a civil conviction.   He elaborated on the history of his units of assignments, events that occurred, and overseas assignments during his active duty service.  He states that he may have went to jail for joy riding and was wrong.  He concludes that he was a good Soldier and that he would appreciate an honorable discharge for his children's and his grandchildren's sake.

5.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Records were obtained from alternate sources and show that he entered active duty on 14 November 1950, and was trained as a light vehicle driver (4345).   

3.  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 22 June 1954, he was discharged under the provisions of Army Regulation 615-366, for conviction by civil court.  He was furnished an UD certificate.   He had a total of 2 years, 7 months, and 6 days of creditable service and 367 days of time lost. 

4.  The available records contain a copy of a NA Form 13038 (Certification of Military Service) which indicates that he enlisted in the RA on 14 November 1950 and was discharged on 22 June 1954 with the issuance of an undesirable discharge. 

5.  Army Regulation 615-366, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, AWOL [absence without leave], desertion, and conviction by civil court).  Section IV 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.  

6.  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.

7.  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.  The facts and circumstances pertaining to the applicant's discharge are unavailable for review.  However, his DD Form 214 itself shows that his discharge was based on his civil court conviction.  



2.  The applicant's available record contains a copy of his partially legible DD Form 214 and a copy of a Certification of Military Service.  These documents identify the reason for the applicant's discharge and the characterization of his service; therefore, Government regularity is presumed in the discharge process.  

3.  The applicant’s DD Form 214 shows that he accumulated a total of 367 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.  

4.  The applicant’s wishes to have his UD upgraded to honorable before he dies, not just for himself but for his children and grandchildren have been considered; however, they do not support an upgrade of his undesirable discharge.

5.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offense.  By the applicant's own admission, he stated there was no injustice on the Army's part.  He has not provided evidence sufficient to mitigate the character of his discharge.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WDP_  ___GP___  ___JH__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




_____William D. Powers_____
          CHAIRPERSON




INDEX

CASE ID
AR20070009148
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19540622
DISCHARGE AUTHORITY
AR 615-366
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.