RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 March 2008
	DOCKET NUMBER:  AR20070017044 


	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. James e. Anderholm

Chairperson

Mr. William D. Powers

Member

Mr. Jerome L. Pionk

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 he understands that as a young man, at the time of his discharge and considering that they were in battle in the Korean Peninsula, his conduct should have been better.  However, looking at it now, the military should have given him another chance to serve his country and that he feels it was wrong to discharge him with an "other than honorable" (sic undesirable discharge).  He feels that this action was unjust since he was a young man who wanted to serve his country.  In today’s military, a person would not be removed from the military like he was.  This was unjust and inequitable.  Considering that it has been several decades later, he wants to have his records cleared and be given a better discharge to have a better legacy.

3.  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 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 entered active duty on 7 September 1952, at the age of 18 years and 24 days.  His date of birth is 14 August 1934.  He completed 1 year and 5 days of foreign service.



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 26 July 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 2 years, 6 months, and 4 days of creditable service.  Item 38 (Remarks), of his DD Form 214, shows the entry "138 days lost." 

4.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of his DD Form 214, shows the entry "NA."

5.  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.

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 which stood for unfitness.  

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

3.  The applicant's DD Form 214 shows he had 138 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 stated, in effect, that he understood he was a young man, at the time of his discharge.  It is noted that he was 18 years and 24 days of age at the time of his entry on active duty and was 19 years, 11 months, and 13 days of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

5.  The applicant alleges that they were in battle in the Korean Peninsula.  The evidence shows he completed 1 year and 5 days of foreign service; however, there are no indicators to show where this foreign service was performed.  Review of the applicant's DD Form 214 shows he was not awarded any awards or decorations indicating service in Korea.

6.  The applicant contends, in effect, that his conduct should have been better, that he should have been given another chance to serve his country.  He feels that it was wrong to discharge him with an undesirable discharge.  His contentions and feelings were considered; however, without proper justification and evidence of injustice they do not support an upgrade of his undesirable discharge.

7.  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.


8.  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

____A___  ____WDP  __JP ___  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.




____James E. Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20070017044
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080304
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19540726
DISCHARGE AUTHORITY
AR 615-368
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.