IN THE CASE OF:	  

		BOARD DATE:	        04 NOVEMBER 2008

		DOCKET NUMBER:  AR20080010942 


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 that his undesirable discharge be upgraded to an honorable discharge. 

2.  The applicant states that he was released from active duty (REFRAD) with an honorable characterization of service on 21 September 1953.  However, due to “McCarthyism,” he was sent an Undesirable Discharge Certificate on 14 October 1954.  He goes on to state that the political climate at the time of this injustice was not conducive to appeal and he has carried this unnecessary burden through his life.  He further states that he should never have received an “Undesirable” status and that the Supreme Court has reversed these types of cases.  

3.  The applicant provides a copy of his DD Form 214, a copy of his Undesirable Discharge Certificate and a letter from his daughter.

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 was born on 17 July 1928 and was working as a merchant seaman when he was inducted in Baltimore, Maryland on 9 October 1951.  He successfully completed his training at Fort Knox, Kentucky and was awarded the military occupational specialty (MOS) of a wheel vehicle mechanic (1014) in the Transportation Corps.

4.  The available records show that he served 8 months and 6 days of foreign service and that he was awarded the Korean Service Medal and the United Nations Service Medal.

5.  On 21 September 1953, he was honorably REFRAD in the rank of private first class at Fort Lewis, Washington.  He had served 1 year, 11 months and 13 days of total active service and he was transferred to the Army Reserve Washington Military District to complete the remainder of his 8-year statutory service obligation under the Universal Military Training and Service Act.

6.  On 14 October 1954, 1 year and 14 days after his REFRAD, the applicant was issued an Undesirable Discharge Certificate under the provisions of Special Regulation (SR) 600-220-1.

7.  In the processing of this case a search was made by the staff of the Board to locate any files or dossiers related to the applicant’s case at the National Archives in College Park, Maryland.  However, no such documents could be located.

8.  Staff members of the Board contacted the applicant and his daughter in an attempt to locate additional documents related to his discharge and the applicant indicated that he had numerous documents related to his discharge that he obtained through the Freedom of Information Act and he further indicated that he would forward the documents to the staff member to assist in completing his case.  The applicant's case was held in abeyance for over 60 days awaiting the receipt of those documents and to date, no documents have been received.
9.  Special Regulation (SR) 600-220-1 (Military Personnel Security Program) dated 18 June 1954 prescribed procedures whereby disloyal or subversive military personnel in all components (except the National Guard not on Federal service) would be discharged from the military service.  Activities and associations which could be considered as establishing reasonable grounds for the discharge of disloyal or subversive military personnel included but was not limited to advocacy of revolution, force, or violence for the purpose of altering the existing constitutional form of government of the United States, or to effect an economic, political, or social change in the United States; and membership in, affiliation with, or sympathetic association with any foreign or domestic organization, association or combination of persons which practiced, sought to practice, or advocated alteration, through or with the aid of force, violence, or intimidation, of the existing constitutional form of government of the United States which was disclosed or designated to be totalitarian, fascist, communist, or subversive.  Additionally, failure or refusal to sign a loyalty oath or answer questions on the DD Form 98 (Security Questionnaire) were grounds for consideration.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative discharge was accomplished in accordance with the applicable laws and regulations in effect at the time, with no violations of any of the applicant's rights.

2.  While it may have been helpful if the applicant had provided the documents related to the circumstances of his discharge at the time, it must be presumed in the absence of evidence to the contrary, that his ultimate discharge was appropriate under the circumstances.

3.  Therefore, lacking evidence to show that his discharge was either in error or was unjustly characterized, there appears to be no basis to grant his request for an upgrade or to issue him a new discharge certificate.

4.  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.





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. 




      _______ _  XXX_____   ___
               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)                                         AR20080010942



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ABCMR Record of Proceedings (cont)                                         AR20080010942



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