IN THE CASE OF:	  

		BOARD DATE:	  	   22 January 2009

		DOCKET NUMBER:  AR20080015241 


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, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, at the time he was "just bitter, young, suffering, and just crazy" and has been "ashamed [his] whole life for that decision."  He also states "I have tried to make up for it by being a model citizen, hard worker, good father and husband."  He adds that he served honorably from May 1950 to April 1953.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 16 January 1958; two National Archive and Records Administration NA Forms 13038 (Certification of Military Service), both dated 20 August 2008; and an undated letter written by Ireta C. H____ in support of his 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 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 personnel records show that he enlisted in the Regular (RA) for a period of 3 years and entered active duty on 19 May 1950.  Records show that the applicant’s date of birth is 16 May 1932 and he was 18 years of age at the time of his enlistment.  The applicant was assigned overseas and served in Korea from 3 October 1950 to 13 February 1952 in military occupational specialty (MOS) 111.60 (Light Weapons Infantryman).  He was assigned overseas again to Korea on 22 July 1952, reenlisted in the RA for a period of 6 years on 24 April 1953, and remained in Korea until 2 January 1954 serving primarily in MOS 714.10 (Mail Clerk).  The applicant was later assigned overseas and served in Germany from 15 October 1955 to 16 May 1957 in MOS 642.10 (Heavy Vehicle Driver).

4.  The applicant’s available military personnel records contain a partially burned WD AGO Form 24 (Service Record).  Section 6 (Time Lost Under Section 6(a), Appendix  2b, Manual for Courts-Martial (1951) and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the applicant was absent without leave (AWOL) for 14 days from 10 to 23 May 1952; AWOL for 8 days from 30 April to 7 May 1953; AWOL for 1 day on 9 March 1954; AWOL for 13 days from 18 to 30 April 1954; AWOL for 63 days from 8 July to 8 September 1954; confined (CONF) for 176 days from 9 September 1954 to 3 March 1955; AWOL for 2 days from 21 to 22 November 1955; AWOL for 4 days from 16 to 19 January 1956; AWOL for 1 day on 2 May 1957; AWOL for 4 days from 9 to 12 August 1957; AWOL for 6 days from 13 to 18 August 1957; AWOL for 13 days from 1 to 13 October 1957; and CONF for 66 days from 15 October to 19 December 1957.

5.  The applicant's military personnel records contain a partially burned WD AGO Form 26 (Record of Court-Martial Conviction) that documents the following convictions by courts-martial:

	a.  Headquarters, Fort Lawton, Washington, Summary Court-Martial Order Number 1367b, Article 86, for AWOL from on or about 10 May 1952 to on or about 24 May 1952 with the sentence to forfeit $30.00 of pay and restriction to the limits of his company area for 10 days, adjudged and approved on 2 June 1952.

	b.  Headquarters, 8023nd Army Unit, Camp Sasebo, Korea, Special Court-Martial Order Number 28, Article 86, for AWOL from on or about 30 April 1953 to on or about 8 May 1953 with the sentence to be reduced to the grade of private first class (E-3) and to forfeit $75.00 per month for 3 months, adjudged and approved on 16 May 1953.

	c.  Headquarters, 3rd Armored Cavalry Regiment, Fort George G. Meade, Maryland, Summary Court-Martial Order Number 41, Article 86, for AWOL from on or about 18 April 1954 to on or about 30 April 1954 with the sentence to be reduced to the next inferior grade (private, E-2) and to forfeit $62.00 of pay per month for 1 month, adjudged on 4 May 1954 and approved on 6 May 1954.

	d.  Headquarters, Special Troops, 9135th Troop Support Unit, Fort Lee, Virginia, Special Court-Martial Order Number 414, Article 86, for AWOL from on or about 8 July 1954 to on or about 9 September 1954 with the sentence to be confined at hard labor for 6 months and to forfeit $39.00 per month for 6 months, adjudged on 4 October 1954 and approved on 6 October 1954.

	e.  Headquarters, 24th Transportation Battalion (Truck) (Germany), Special Court-Martial Order Number 2, Article 86, for AWOL from on or about 16 January 1956 to on or about 20 January 1956 with the sentence to be confined at hard labor for 2 months and to forfeit $40.00 per month for 2 months, adjudged on 2 February 1956 and approved on 3 February 1956.

	f.  Headquarters, Fort Myer, Virginia, Special Court-Martial Order Number 42, Article 86, for AWOL from on or about 1 October 1957 to on or about 14 October 1957 with the sentence to be confined at hard labor for 3 months and to forfeit $40.00 per month for 3 months, adjudged on 23 October 1957 and approved on 29 October 1957.

6.  The applicant’s available military personnel records are absent a complete copy of the applicant’s separation packet and report of board proceedings.  However, available records contain a copy of a partially burned Headquarters, Fort Myer, Arlington, Virginia, letter (date undistinguishable), that shows the Assistant Adjutant confirmed that the report of proceedings of the Board of Officers convened pursuant to the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character) in the case of the applicant was approved by the commander.  This document also shows it was directed that the applicant be discharged from the service and issued a DD Form 258A (Undesirable Discharge Certificate).
7.  The applicant’s available military personnel records contain a DD Form 214 that shows he entered active duty this period on 19 May 1950 and was discharged on 16 January 1958 under other than honorable conditions under the provisions of Army Regulation 635-208.  Item 19 (Current Active Service Other Than by Induction) shows the applicant’s initial term of service was 3 years and that he reenlisted for 6 years on 24 April 1953.  At the time of his discharge he had completed 6 years, 7 months, and 22 days net service and he had a total of 371 days lost.

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

9.  On 23 October 1969, the applicant submitted an application to the Army Discharge Review Board (ADRB) and requested a change to the type and nature of his discharge to honorable.  After careful consideration of the applicant’s military records and all other available evidence, the ADRB determined that the applicant was properly discharged and advised the applicant that his request to change the type and nature of his discharge was denied.

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

	a.  A Certification of Military Service, dated 20 August 2008, shows, in pertinent part, the applicant was a member of the RA from 19 May 1950 to 23 April 1953 and his service was terminated by an honorable discharge.

	b.  A Certification of Military Service, dated 20 August 2008, shows, in pertinent part, the applicant was a member of the RA from 24 April 1953 to 16 January 1958 and his service was terminated under other than honorable conditions.

	c.  An undated letter from Ireta C. H____, the applicant’s wife, states that she married the applicant in 1954.  Mrs. H____ also states that the applicant was "very messed up from the war" and she describes the applicant’s behavior during the early years of their marriage.  She states that after about 10 years the applicant changed and he has been an honest, hard working, and loving father and husband that she has known now for 54 years.  Mrs. H____ describes how one of their daughters was born while they were stationed in Germany and then died when she was 5 weeks old, and they were reassigned to the United States.  She states that the applicant just wanted to get out the Army because he believed that things would have been different with his daughter had they been in the United States at the time.  Mrs. H____ concludes by adding that the applicant regrets the decision he made at the time and she requests the Board change the character of his discharge for the sake of the applicant, their children, and her.
11.  Army Regulation 635-208, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character.  This Army regulation provides, in pertinent part, that a recommendation for discharge because of undesirability will be made in the case of an enlisted person who gives evidence of habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  This Army regulation also provides that Soldiers discharged because of undesirable habits or traits of character will be furnished an Undesirable Discharge Certificate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the policies and procedures for the separation of enlisted personnel.  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.

13.  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.

14.  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 the character of service of his discharge should be upgraded because he was bitter, young, suffering, and crazy, and he has been ashamed all his life regarding the decision he made.  He also contends that since his discharge he has been a model citizen, hard worker, good father, and good husband.

2.  The evidence of record shows that the applicant initially entered active duty on 19 May 1950, was honorably discharged for the purpose of his immediate reenlistment on 23 April 1953, and that this period of honorable service is documented in his military service records.

3.  The evidence of record shows the applicant was 18 years of age when he initially entered active duty in the Army and that he was 20 years of age in May 1952 when he began committing acts of indiscipline over the course of the next 5 1/2 years of his military service until he was discharged on 16 January 1958.  However, there is no evidence, and the applicant provides insufficient evidence, that indicates he was any less mature than other Soldiers of the same age who successfully completed military service during this period.

4.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he was "crazy" or medically diagnosed with any mental disorder.  The applicant’s suffering and emotional pain resulting from the loss of his 5-week old daughter while assigned overseas in Germany is understandable.  However, the applicant’s emotional state at that time is no justification for his continuous and considerable periods of AWOL spanning more than a 5 1/2-year period of his military service.

5.  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 credible evidence to rebut the presumption.  The applicant has failed to provide such evidence.  Thus, in the absence of evidence to the contrary, the presumption is that 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.

6.  The evidence of record shows the applicant was credited with completing 6 years, 7 months, and 22 days of net active service.  The evidence of record also shows that during this period the applicant was convicted by summary/special courts-martial on six occasions and accumulated 371 days (i.e., more than 1 year) of time lost.  Thus, the applicant’s statement that he has been "ashamed [his] whole life for that decision" (emphasis added) is not fully understood.  In any event, the applicant’s record of service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the evidence of record shows the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

7.  The comments regarding the applicant's dedication to his family and post service conduct were considered.  However, this good post service conduct alone is not a basis for upgrading a discharge.

8.  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 in this case.

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)                                         AR20080015241



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ABCMR Record of Proceedings (cont)                                         AR20080015241



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