RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070018550 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Eric N. Anderson

Chairperson

Mr. Peter B. Fisher

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 an upgrade of his discharge.

2.  The applicant states in effect, that he is unsure why he received an undesirable discharge. 

3.  The applicant did not provide any additional documentary evidence in support of his application.  

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 DD Form 214 (Report of Separation from the Armed Forces of the United States) shows that, with prior enlisted service, the applicant enlisted in the Regular Army for a period of 3 years on 12 November 1953 in the rank/grade of private (PV2)/E-2 and in military occupational specialty (MOS) 941.10 (Cook).

3.  The DD Form 214 further shows that he was assigned to the 734th Anti-aircraft Artillery (AAA) Gun Battalion as a Truck Driver.  The 734th AAA Gun Battalion was attached to the 22nd AAA Group, 1st Infantry Division, Korea, before it was reflagged under the Army National Guard and moved to Fort Sheridan, Illinois, in 1954.

4.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the applicant's DD Form 214 shows he was discharged on 2 April 1956 in accordance with the provisions of Army Regulation 615-368 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge), for unfitness, in pay grade E-1.  He was furnished an Undesirable Discharge.  He completed 1 year, 10 months, and 23 days of military service during this period of enlistment.  Item 38 (Remarks) of the DD Form 214 shows the entry, "182 days lost under Sec 6a App MCM 1951."

5.  There is no indication 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.  Section 6a of Appendix 2b of the Manual of Courts-Martial, dated 31 May 1951, states that every Soldier who in an existing or subsequent enlistment deserts the service of the United States, or without authority absents himself from his organization, station, or duty for more than one day, or who is confined for more than one day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction, or through the intemperate use of drugs or alcoholic liquor, for more than one day to perform duty, shall be liable to serve, after his return to a full duty status, for such period as shall, with the time he may have served prior to such desertion, unauthorized absence, confinement, or inability to perform duty, amount to the full term of that enlistment period which is required to serve with his organization before being transferred to the Army reserve. 

7.  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.

8.  Army Regulation 635-200, paragraph 3-7a, 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.

9.  Army Regulation 635-200, paragraph 3-7b, 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.  This document listed his authority for separation as Army Regulation 615-368.

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

3.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ena___  __pbf___  __jcr___  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.




							Eric N. Anderson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.