RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070011728 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 that his general discharge be upgraded to fully honorable.

2.  The applicant states that he received a general discharge under honorable conditions for an infraction with a junior noncommissioned officer and received only company level punishment.  The Uniform Code of Military Justice was not yet in effect.  He was not reduced in rank.  He lost no pay, and the only punishment that was imposed was extra duty.  

3.  The applicant provides his General Discharge Certificate and his DD Form 214 (Report of Separation from the Armed Forces of the United States).

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 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, consisting of his DD Form 214, remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant enlisted in the Regular Army on 29 May 1947 for 3 years.  He was promoted to Private First Class, E-3 on 23 September 1949.  He was discharged with a general under honorable conditions discharge on 8 May 1950 upon the completion of his expiration of term of service (ETS), under the provisions of Army Regulation 615-365 and Special Regulation 615-360-10, after completing 2 years, 11 months, and 10 days of creditable active service with no lost time.

4.  Army Regulation 615-365, in effect at the time, governed the discharge of enlisted Soldiers for the convenience of the Government under one of seven categories:

     (a)  to accept a commission or appointment as an officer or warrant officer or as a service academy cadet;

     (b)  to permit immediate reenlistment in the Regular Army for 3 years or more of members currently serving in the Regular Army; 

     (c)  when to do so was based upon the individual’s importance to national health, safety, or interest;

     (d)  to permit immediate reenlistment in the Regular Army for 3 years or more of members currently serving in the Army of the United States;

     (e)  to permit enlisted personnel of the U. S. Army who, on and after                9 December 1947, extended their short-term enlistments (less than 3 years) to attend school under the G.I. Bill under certain listed circumstances;

     (f)  based upon an individual’s claim that, prior to induction, he was denied a procedural right as provided by the Selective Service Act of 1948 and was, therefore, erroneously inducted; and

     (g)  to permit immediate reenlistment in the Regular Army for one of the authorized periods, of individuals currently serving in a 1-year Army of the United States enlistment who were selected for attendance at an officer candidate school.

5.  Army Regulation 615-365 stated that, unless otherwise directed, an Honorable Discharge or a General Discharge Certificate would be issued.

6.  Special Regulation 615-360-10, in effect at the time, provided for the discharge of Regular Army enlisted personnel who enlisted prior to 1 October 1947 prior to their ETS, upon application, when the number of days remaining in their enlistment did not exceed the amount of unused accrued leave standing to their credit, provided there were no military reasons to the contrary.

7.  Army Regulation 635-200 is the current regulation governing the separation of enlisted personnel.  In pertinent part, it states 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.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a Solder whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

8.  Army Regulation 635-200 provides that only the honorable characterization may be awarded a Soldier upon completion of his period of enlistment.

DISCUSSION AND CONCLUSIONS:

1.  There appears to have been no error in issuing a general discharge to the applicant.  To do so was provided for by regulation at the time.  However, it appears that it may have been inequitable to do so.

2.  Although the applicant’s records are not available and only his statement as to the quality of his service is presented, he was separated upon the completion of his ETS.  He was not separated under a regulatory authority that would reflect adversely on his record of service.  (It also appears that the regulatory authority should perhaps have been Army Regulation 615-360 (the “normal” discharge or release from active duty upon ETS) instead of Army Regulation 615-365.  However, even that regulation would not have reflected adversely on his record of service.)  The fact he was not promoted after September 1949 is also not necessarily a reflection of his service.  He served during peacetime, when promotions are normally slow in coming.

3.  If the quality of his service had not generally met the standards of acceptable conduct and performance of duty for Army personnel, it is reasonable to believe that the applicant would have been separated for cause prior to his ETS.  Under current standards, retention in the service until ETS mandates the issuance of a fully honorable discharge.  

4.  As an exception to policy, it appears it would be equitable at this time in the applicant’s life to upgrade his characterization of service to fully honorable.  

BOARD VOTE:

__jev___  __tmr___  __jcr___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
 
    a.  showing he was given an honorable discharge from the Army on 8 May 1950; 

    b.  issuing to him an Honorable Discharge Certificate from the Army of the United States, dated 8 May 1950, denoting an honorable discharge in lieu of the general discharge now held by him; and 

     c.  issuing to him a new DD Form 214 reflecting the above correction.




	___James E. Vick______
          		CHAIRPERSON




INDEX

CASE ID
AR20070011728
SUFFIX

RECON

DATE BOARDED
20080122
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19500508
DISCHARGE AUTHORITY
AR 615-365. . . .  
DISCHARGE REASON
A03
BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.