IN THE CASE OF:	

		BOARD DATE:	  16 September 2008

		DOCKET NUMBER:  AR20080005354 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his records to show he was honorably separated with a medical discharge.

2.  The applicant states, in effect, that he served in the U.S. Army from 5 January 1949 to 4 January 1950 and also from 20 October 1950 to 9 September 1951.  He also states that during his second period of service he was separated because he could not adjust and given an undesirable discharge.  The applicant asserts that he was mentally ill at the time and he should have been given a medical discharge.

3.  The applicant provides a copy of State of Arkansas, State Board of Health, Bureau of Vital Statistics (Birth Certificate), File Number 7___; WD AGO Form 53-280 (Enlisted Record and Report of Separation - Certificate of Service), with an effective date of 4 January 1950; DD Form 214 (Report of Separation from the Armed Forces of the United States), with an effective date of 9 September 1951; and 9 letters written by Joseph M______, undated; Sey G___, undated; Diana L. G_____, undated; Richard F. B_____, Sr., dated 14 May 2005; Lester F. H___, dated 1 June 2005; Master Sergeant David E. J______, U.S. Air Force (Retired), dated 6 June 2005; Chief Master Sergeant Paul V. H_____, U.S. Air Force (Retired), dated 20 June 2005; Leah B______, dated 26 June 2005; and Vincent G. C_____, dated 26 June 2005.


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 service 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 for the Board to conduct a fair and impartial review of this case.

3.  The applicant’s available military service records contain a WD AGO Form
53-280 (Enlisted Record and Report of Separation - Certificate of Service), with an effective date of 4 January 1950.  This document shows that the applicant was inducted into the U.S. Army and entered active duty on 5 January 1949.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 5704 (Fire Direction and Liaison Operator).  The highest grade the applicant held was private.  This document also shows that the applicant was honorably separated from active duty on 4 January 1950, under the provisions of Service Regulation 615-363-5 (Convenience of the Government).  At the time, he was credited with completing 1 year, 0 months, and 0 days of total service.

4.  The applicant’s available military service records contain a DD Form 214 (Report of Separation from the Armed Forces of the United States), with an effective date of 9 September 1951. This document shows that the applicant entered active duty in the U.S. Army on 20 October 1950 in the grade of private (E-2).  This document also shows the applicant served overseas in the Republic of Korea (ROK) from 10 February 1951 to 9 August 1951, and he completed
10 months and 18 days of a 21-month tour of active military service.  This document further shows that the applicant was discharged, under the provisions of Army Regulation 615-368 and Headquarters, Special Troops Eighth
U.S. Army, Korea (EUSAK), Board Proceedings, dated 26 July 1951, in the grade of private (E-1), with a characterization of service of undesirable.

5.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

6.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the authority and reason for his discharge within its 15-year statute of limitations.

7.  In support of his application, the applicant provides the following documents.

     a.  State of Arkansas, State Board of Health, Bureau of Vital Statistics (Birth Certificate), File Number 7___, that shows, in pertinent part, the applicant was born on 18 August 1930.

     b.  WD AGO Form 53-280, with an effective date of 4 January 1950, and
DD Form 214, with an effective date of 9 September 1951.  These 2 documents were previously introduced and considered in this Record of Proceedings.

     c.  A letter written by Joseph M______, undated, that states he has known the applicant since 1997 and that the applicant is an upstanding citizen.

     d.  A letter written by Sey G___, undated, that states he has known the applicant for the last 5 years and that the applicant’s discharge should be changed to honorable because he has never been in trouble with the law.

     e.  A letter written by Diana L. G_____, undated, a friend of the applicant, that states she met him approximately 5 years ago at the Salvation Army in Anaheim (California), she believes the applicant has served his community and the nation honorably, and is deserving of having his discharge upgraded to honorable.

     f.  A letter written by Richard F. B_____, Sr., dated 14 May 2005, a former Soldier who served in the same unit as the applicant.  Mr. B_______ recounts his military service and the brief period of time he served in the ROK.

     g.  A letter written by Lester F. H___, dated 1 June 2005, a former Soldier who served in the same unit as the applicant and, in pertinent part, states “[w]e saw action from 1951 to 1952 front lines.”

     h.  A letter of recommendation written by Master Sergeant David E. J______, U.S. Air Force (Retired), dated 6 June 2005, a friend of the applicant for over
13 years, who states the applicant’s loyalty to the nation is exemplary and that “[h]e has always been a model citizen and a person to be relied on.”

     i.  A letter of reference written by Chief Master Sergeant Paul V. H_____, U.S. Air Force (Retired), dated 20 June 2005, who met the applicant in the fall of 1987 through a fellowship they were associated with and, in pertinent part, he states ”I believe [the applicant] has served his community and the nation honorably throughout his life and is deserving of having the terms of his military discharge changed to Honorable.”

     j.  A letter written by Leah B______, dated 26 June 2005, a friend of the applicant for approximately 10 years, who states, in pertinent part, “I consider [the applicant] as the father that I never had” and “a mentor to me.”

     k.  A letter of reference written by Vincent G. C_____, dated 26 June 2005, who met the applicant in the summer of 2001 and attests to the applicant’s service to his community and the nation, and that he believes the applicant deserving of having the terms of his military discharge changed to honorable.

8.  Army Regulation 615-368 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character), in effect at the time of the applicant's separation from active duty, provided policy and guidance in the elimination from the service of enlisted personnel having undesirable habits and traits of character.  This document states that when an enlisted man gives evidence of habits or traits of character which serve to render his retention in the service undesirable, and his rehabilitation is considered impossible after repeated attempts to accomplish same have failed, his company or detachment commander will report the facts to the commanding officer.  This document also provides, in pertinent part, that the board proceedings will be sent to the officer who executes the discharge, as authority therefor.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was medically separated from the Army with an honorable discharge because he served honorably in the U.S. Army from 5 January 1949 to 4 January 1950.  However, when he served from 20 October 1950 to 9 September 1951, he was mentally ill at the time and should have been given a medical discharge.

2.  The evidence of record shows that the applicant served on active duty from
5 January 1949 through 4 January 1950 and he was honorably separated from active duty for the Convenience of the Government.  The evidence of record also shows that the applicant reentered active duty on 20 October 1950 and he was issued an undesirable discharge on 9 August 1951.  The evidence of record further shows the authority for his discharge was Army Regulation 615-368 and Headquarters, Special Troops EUSA, Board Proceedings, dated 26 July 1951.

3.  There is no evidence of record and the applicant provides insufficient evidence to show that he was mentally ill during the period of service under review, or that he should have been given a medical discharge.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 615-368, which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  In the absence of evidence to the contrary, it appears the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant is not entitled to upgrade of the characterization of his service or correction of his discharge.
5.  The comments of the applicant, former fellow Soldiers, and his friends were carefully considered.  While the sincerity of the comments is not in question, the applicant’s good post-service conduct, personality traits, and community involvement alone is not a basis to warrant an upgrade of his discharge.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X____  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.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005354



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ABCMR Record of Proceedings (cont)                                         AR20080005354



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