RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080003046 


	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, in effect, that his undesirable discharge be upgraded.

2.  The applicant states that he served in Korea for 13 months, and when he came home he made some mistakes that he is sorry for.  He was a good Soldier and served his country with honor.  Since his discharge he has tried to be a good person.  He has been married for 50 years and took care of his family.  He raised three children, and they turned out to be real good.  He also knows men who went to Canada to keep from going into the Army, and they received amnesty.

3.  The applicant provides a Certification of Military Service; his DD Form 214 (Report of Separation from the Armed Forces of the United States); and a letter, dated 3 December 2007, from the National Personnel Records Center.

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

3.  The applicant enlisted in the Regular Army on 25 March 1949.  

4.  The applicant’s discharge packet is not available.  He was discharged on     29 June 1953 under the provisions of Army Regulation 615-368 with an undesirable discharge under conditions other than honorable.  He had completed 3 years, 4 months, and 27 days of creditable active service and had 344 days of lost time.  His DD Form 214 shows his awards included the Distinguished Unit Emblem and the Bronze Star Medal.

5.  Army Regulation 615-638, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness or unsuitability.  It established procedures for separating members who demonstrated they were totally unfit or unsuitable for further retention by giving evidence of habits or traits of character manifested by antisocial or amoral trends, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion or misconduct; unclean habits, including repeated venereal infections; repeatedly committed petty offenses not warranting trial by court martial; and habitual shirking, and for whom rehabilitation was considered impossible.  When discharge was for unfitness, an Undesirable Discharge Certificate would be furnished.

6.  Army Regulation 635-200 is the current regulation that governs the separation of enlisted personnel.  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.

7.  Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected draft evaders and military deserters.  These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313   or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The applicant’s good post service conduct is commendable; however, this factor does not warrant the relief requested.
3.  The applicant’s good service during the Korean War has been considered, but it is also noted that his subsequent service included 344 days of lost time.  It cannot be determined if the lost time was from absence without leave or from confinement.  

4.  The applicant’s contentions concerning amnesty for Vietnam draft evaders and deserters have also been considered.  However, while draft evaders and deserters who were processed for separation under PP 4313 would have been entitled to receive a Clemency Discharge if they satisfactorily completed the alternate service satisfactorily, the Clemency Discharge did not affect the underlying, under other than honorable conditions, discharge.   

5.  There is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX___  __XXX___  __XXX__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.





      __            XXX___
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080003046


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