RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20080000747 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 under honorable conditions 
be upgraded to fully honorable.

2.  The applicant states that he was court-martialed, but the charges were 
dropped as he had not committed any crime.  He was given a general discharge, 
dropped in rank, and discharged from the service.  He was a good trooper.  He 
spent 13 months in Korea during the war and was awarded his Combat 
Infantryman Badge.  He feels that his characterization of discharge was given as 
a punitive punishment.  He was never in trouble before his court-martial, nor has 
he been in any trouble after.  He feels he was given a one-way ticket out of the 
Army since they could not prove he had committed a crime.  Within one or two 
weeks after he was exonerated, he was discharged and dropped in rank.  

3.  The applicant provides no additional evidence.

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, 
primarily consisting of his DD Form 214 (Report of Separation from the Armed 
Forces of the United States) remaining in a reconstructed record for the Board to 
conduct a fair and impartial review of this case.

3.  The applicant’s DD Form 214 shows he enlisted in the Regular Army on       
25 June 1951 for 3 years.  Item 3 (Grade – Rate – Rank and Date of 
Appointment) of his DD Form 214 shows his rank as Private, E-2 with a date of 
appointment of 1 December 1953.  
4.  Item 38 of the applicant’s DD Form 214 shows he was retained in the service 
for 1 month and 5 days for the convenience of the Government.  He was 
discharged with a general discharge under honorable conditions on 6 October 
1954 upon the expiration of his term of service under the provisions of Army 
Regulation 615-360 after completing 3 years, 1 month, and 5 days of creditable 
active service with 69 days of lost time.

5.  Army Regulation 615-360, dated 24 June 1953, provided the general 
provisions for the discharge of enlisted personnel at the time.  It stated it was the 
policy of the Department of the Army to base evaluation of an individual’s service 
and character on his overall enlistment period rather than on any disqualifying 
entries in his service record during a particular portion of his current service.  The 
effects of an honorable discharge and a general discharge were identical and 
entitled an individual so discharged to full rights and benefits.  

6.  Army Regulation 615-360 stated an honorable discharge certificate would be 
furnished when the individual met the following qualifications:  (1) had character 
ratings of at least “very good”; (2) had efficiency ratings of at least “excellent”; (3) 
had not been convicted by a general court-martial; and (4) had not been 
convicted more than once by a special court-martial.  Notwithstanding the 
foregoing criteria, when disqualifying entries in the individual’s service record 
during current service were outweighed by subsequent honest and faithful 
service over a greater period of time, an honorable discharge could be furnished. 
Individuals discharged under honorable conditions which did not qualify them for 
an honorable discharge would normally be furnished a general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he had never been in trouble earlier in his 
enlistment and that he was a good trooper have been considered.  However, 
more than 50 years have passed since his discharge, his records (to include a 
record of his conduct and efficiency ratings) are no longer available, and his 
statements cannot be substantiated by any evidence of record. 

2.  It is noted that his DD Form 214 indicates his rank as Private, E-2, but the 
effective date of appointment was 1 December 1953, almost 10 months before 
his discharge.  There is no evidence to show he was discharged because the 
Army “kicked” him out “since they could not prove that he had committed a 
crime.”  His DD Form 214 shows he was discharged because his enlistment had 
expired.  



3.  In the absence of evidence to the contrary, it must be presumed that his 
characterization of service was based upon his overall record of service.  There 
is insufficient evidence that would warrant upgrading his discharge to fully 
honorable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __dkh___  __eem___  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.




      _                 _lds____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000747

4

DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS 
1901 SOUTH BELL STREET 2ND FLOOR 
ARLINGTON, VA  22202-4508