RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070009725 


	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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded to an honorable discharge because he went through medical treatments.  He states that as a patient in the hospital, he received over one dozen electrical shock treatments.  Upon his release at Fort Hood, Texas, he was unjustly treated for an incident that to this day he was never involved in, in any manner. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) 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 1 March 1949, for 3 years, with an established expiration term of service (ETS) of 28 February 1952.  He was trained as a tank bow gunner (3795).

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 29 November 1952, he was discharged from the Army pursuant to the sentence of a general court-martial, under the provisions Army Regulation 615-364, paragraph 1a, for an offense of riot and   for wrongfully damaging government property.  He was initially issued a 
dishonorable discharge.   He had a total of 2 years, 8 months, and 11 days of creditable service and 367 days of lost time prior to his scheduled ETS and 59 days of time lost subsequent to his normal ETS. 

4.  The available records contain a copy of a DD Form 215 (Correction to DD Form 214) which indicates that he completed 2 years, 8 months, and 10 days of total service and completed 1 year, 1 month, and 14 days of foreign service.  This same DD Form 215 also indicates his dishonorable discharge was upgraded to an undesirable discharge based on the conclusions and a recommendation by this Board in 1955.

5.  The applicant's medical records are unavailable for review.

6.  Army Regulation 615-364, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person will be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.  

7.  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.

8.  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 he was discharged from the Army pursuant to the sentence of a general court-martial, for an offense of riot and for wrongfully damaging government property.  



2.  The Board noted that the applicant's record contains a copy of his 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.  

3.  The applicant’s DD Form 214 shows that he accumulated a total of 325 days of lost time and 59 days of lost time subsequent to his normal ETS.   A loss of this amount of time due to either absence without leave or confinement is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his undesirable discharge.  

4.  The applicant alleges that he went through medical treatments, was a patient in the hospital, and received over one dozen electric shock treatments.  Upon his release at Fort Hood he was unjustly treated for an incident to this day that he was never involved in, in any manner; however, his medical records are unavailable for review and he has provided no evidence to support his allegations. 

5.  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 _  _JH _____  __GP___  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
AR20070009725
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19521129
DISCHARGE AUTHORITY
AR 615-364
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.