IN THE CASE OF:	

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080009198 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he served 31 months in the U.S. Army which included service in Japan.  He received an undesirable discharge due to a misunderstanding with another Soldier.  He did not receive nonjudicial punishment or a court-martial for the incident.  He has been a member of the American Legion and Veterans of Foreign Wars for more than 20 years and is a member of a Funeral Honor Guard for veterans.  He is a 79 old veteran that needs his discharge upgraded in order to receive medical care from the Department of Veterans Affairs (VA) medical system.

3.  The applicant provides a copy of his separation document (WD AGO Form 53-59), a letter from the State of Louisiana VA, and four membership cards from veterans’ organizations.

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

3.  The applicant’s reconstructed record shows that he enlisted into the Regular Army on 11 February 1947.  He completed the necessary training and was awarded the military occupational specialty (MOS) 345 (Truck Driver Light).

4.  On 4 October 1947, the applicant was convicted by a summary court-martial for violating an existing speed limit by driving a 3/4 ton vehicle in excess of  
10 MPH [miles per hour] over the speed limit.  His punishment consisted of forfeiture of $25.00 per month for 1 month.

5.  On 30 August 1948, the applicant was convicted by a special court-martial for stealing and carrying away twenty-eight hundred Yen from a Japanese National. His punishment consisted of confinement for 3 months, reduction to the grade of recruit, and forfeiture of $50.00 per month for 3 months. 

6.  On 15 June 1949, the applicant's commander recommended that the applicant appear before a board of officers under the provisions of Army Regulation 615-368 for consideration to be discharged from the service.  The applicant desired, and was appointed, a duly appointed counsel; however, he elected to remain silent.

7.  On 22 July 1949, a board of officers convened for the purpose of considering whether the applicant should be discharged from the service due to unfitness or unsuitability.  The Board’s recommendations were to discharge the applicant from the service due to unfitness with an undesirable discharge.

8.  On 8 August 1949, the separation authority approved the Board’s recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  On 20 September 1949, the applicant was discharged.  The WD AGO Form 53-59 he was issued shows he completed a total of 2 years, 4 months, and 21 days of Total Length of Service.  He had accrued 49 days of time lost. 
9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 615-368, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  This 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, unclean habits, including repeated venereal infections or misconduct.  Action to separate an individual was to be taken when, in the judgement of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be upgraded to an honorable discharge so he may to receive medical care from the VA medical system.

2.  Evidence shows that the applicant had two previous convictions by courts-martial; one summary and one special.  A Board of officers recommended that the applicant be discharged due to unfitness with an undesirable discharge.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record shows he had 49 days of time lost.  


4.  While the applicant’s involvement in veterans’ service organizations is commendable, it does not constitute the basis for upgrading a properly issued discharge.

5.  Additionally, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20080009198



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ABCMR Record of Proceedings (cont)                                         AR20080009198



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