IN THE CASE OF:	    

		BOARD DATE:	         4 September 2008

		DOCKET NUMBER:  AR20080007286 


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, that his discharge and characterization of service be upgraded.

2.  The applicant states, in effect, that he was not informed about the ramifications of receiving an undesirable discharge under the provisions of Army Regulation 635-208 (Personnel Separations).  He also states that he recalls appearing before an Army Board while stationed in Germany, but he thought he was being returned home in order to be reassigned.  The applicant adds that he was not represented by counsel at the time of his separation.  The applicant concludes by stating that he is a proud American and would like to have this blemish lifted from his record before he dies.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), and a letter from the United States Army Reserve Personnel Center as additional documentary evidence in support of this 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 record shows he enlisted in the Regular Army at the age of 17, on 9 September 1954.  He completed basic combat training and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 130.00 (Armor Basic).  The applicant completed a total of 2 years, 4 months, and 19 days of active federal service prior to being discharged on 23 February 1957.  The rank he held at the time of his discharge from active duty was private (PVT)/pay grade E-1.

3.  The applicant's record is void of the separation packet containing the specific facts and circumstances surrounding his discharge processing from the Army; however, it does contain a properly constituted DD Form 214 that confirms the applicant was discharged from the Regular Army under the provisions of Army Regulation 635-208.  This DD Form 214 shows the applicant's service was characterized as under other than honorable conditions and that he was issued a DD Form 258A (Undesirable Discharge Certificate).  The applicant authenticated this document with his signature on the date of his separation.  In effect, his signature is his verification that the information contained on the separation document, to include the authority and reason for his discharge, was correct at the time the DD Form 214 was prepared and issued.  Absent evidence to the contrary, this document establishes a presumption of Government regularity in the applicant’s separation processing.

4.  United States Army Reserve Personnel Center, St. Louis, Missouri letter, dated 6 July 1994, informed the applicant that his DD Form 293 had been received.  This letter further informed the applicant that since he had been separated from the Army more than 15 years, he needed to submit an application to the Army Board for Correction of Military Records.  A DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, United States Code, Section 1552) was provided as an enclosure with the letter.

5.  Army Regulation 635-208 (Personnel Separations), in effect at the time, set forth the policy for administrative separation for frequent incidents of a discreditable nature (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, 
pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for frequent incidents of a discreditable nature was warranted, an undesirable discharge was normally issued.

6.  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.

7.  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 (emphasis added), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge and characterization of service should be upgraded were carefully considered and determined to be without merit.

2.  Although the applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army, his record contains a properly constituted DD Form 214 which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and administrative regularity in the discharge process is presumed.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-208, for frequent incidents of a discreditable nature.  In connection with such a discharge, there was a requirement for evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  

4.  Procedurally, action to separate an individual under the provisions of 
Army Regulation 635-208 was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.
5.  By his own admission, the applicant appeared before a board prior to his separation.  In the absence of information to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

6.  In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's case.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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)                                         AR20080007286



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ABCMR Record of Proceedings (cont)                                         AR20080007286


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