IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080011715 


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 (UD) be upgraded.

2.  The applicant states, in effect, that circumstances and situations resulting from a broken leg made it impossible for him to remain in the Army.  He requested to be discharged from the Army and he was told that he could be discharged with no penalties only if he accepted an UD.  He indicates that he learned differently when he applied for benefits from the Department of Veterans Affairs (VA).  

3.  The applicant provides the following documents in support of his application: Separation Document (DD Form 214); Application for the Review of Discharge From the Armed Forces of the United States (DD Form 293); and an Office of The Surgeon General (OTSG) Hospital Admission Record.  


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 were not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in the NPRC File for the Board to conduct a fair and impartial review of this case.  This case is being considered primarily using the applicant’s DD Form 214.

3.  The applicant’s DD Form 214 shows he enlisted in the Regular Army and  entered active duty on 31 October 1952.  It also shows he completed 3 years, 
8 months, and 22 days of active military service, of which 1 year, 5 months, and 6 days was foreign service. 

4.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards during his active duty tenure:  Korean Service Medal with bronze service star; National Defense Service Medal (NDSM); and United Nations Service Medal (UNSM).  Item 32 (Remarks) contains an entry showing he was honorably discharged for the purpose of immediate reenlistment on 14 November 1955 and that he reenlisted on 
15 November 1955.  It also contains an entry confirming he accrued 159 days of time lost.  The separation document finally confirms that on 1 November 1956, he was discharged under the provisions of Army Regulation 635-208 and was issued an UD.  

5.  There is no evidence indicating that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 
15-year statute of limitations.

6.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service. The regulation provided, in pertinent part, that members who displayed undesirable habits and traits were subject to separation for unfitness.  An UD was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD should be upgraded because he was improperly informed of the conditions surrounding his discharge processing has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant's record is void of a discharge packet containing the specific facts and circumstances concerning the events that led to his discharge.  However, there is a properly constituted DD Form 214 on file that identifies the reason and characterization of the discharge, and carries with it a presumption of Government regularity in the discharge process.

3.  Absent evidence to the contrary, it is concluded that the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were protected throughout the separation process.  

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.




      _______ 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)                                         AR20080011715



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ABCMR Record of Proceedings (cont)                                         AR20080011715



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