RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070014957 


	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. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea Nuppenau

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. 

2.  The applicant states, in effect, that life circumstances created problems for him in the service; however, when he became a janitor he got his problems straightened out and served honorably. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), an additional statement in which he elaborated on the events that occurred prior to, during, and after his discharge, which led to him becoming a janitor, and a copy of a letter in which his spouse contributes to memories of their life events 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 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.  This case is being considered using the applicant's DD Form 214 which shows that he was inducted on 24 August 1953.  He was scheduled for training in military occupation specialty (MOS), 1505, Ammunition Supply Supervisor.  

3.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his DD Form 214 shows that on 30 December 1954, he was discharged under the provisions of Army Regulation 615-368, for unfitness, in pay grade E-1.  He was furnished an undesirable discharge.  He had a total of 3 months and 29 days of creditable service.  Item 8 (Reason and Authority for Separation), of his DD Form 214, shows the entry "SPN (Separation Program Number) 78", which stands 
for "discharge because of unfitness."  Item 38 (Remarks), of his DD Form 214, shows the entry "372 days lost." 

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

5.  The applicant provided a copy of a letter in which his spouse contributed her recollection of events that occurred prior to the applicant's parole (sic) and discharge.  She indicated that life circumstances created problems for her spouse, the applicant, while he was in the service; however, when he became a janitor he straightened them out and served honorably.

6.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation 
provided for the discharge of individuals who had demonstrated their unfitness 
by giving evidence of undesirable habits of character manifested by misconduct.
At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable 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 applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army; however, the applicant's record contains a copy of his DD Form 214 he was issued on his separation.  This document lists the authority for his separation as Army Regulation 615-368, with an SPN of "78" which stood for unfitness.  

2.  In the absence of evidence to the contrary, Government regularity is presumed.  The applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The applicant's DD Form 214 indicated that he had 372 day 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 undesirable discharge.  

4.  The applicant alleges, in effect, that life circumstances created problems for him in the service; however, when he became a janitor he straightened them out and served honorably.  A review of the applicant's statement and those allegedly contributed by his spouse failed to reveal what the real problem was.  These statements are insufficient evidence and do not support an upgrade of his undesirable discharge.

5.  There is no evidence in the applicant's 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.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable 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

__r_____  __CD____  ___J____  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.




_____John T. Meixell______
          CHAIRPERSON




INDEX

CASE ID
AR20070014957
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080214
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19530824
DISCHARGE AUTHORITY
AR 615-368
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.