IN THE CASE OF:	

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20080018674 


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 to an honorable discharge (HD).

2.  The applicant states, in effect, that he enlisted at the age of 14 and was sent to Korea.  He claims he tried to adjust to the military and believes that had he been older he would have made a good Soldier.  He also states he regrets the things he did during his time in the military and putting his parents through it all.  He further states that the one thing his mother wanted him to do for her prior to her passing was to have his UD upgraded based on the fact that the mistakes he made were due to his youth and immaturity.

3.  The applicant provides the following documents in support of his application:  Illinois Notification of Birth Registration, Wisconsin Driver License, Medicare Health Insurance Card, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 (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 a reconstructed record for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records which primarily consist of the applicant's DD Form 214.

3.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 8 April 1955 with 8 months and 7 days of prior active service.  He was trained in and awarded military occupational specialty 941.10 (Cook) and the highest rank he attained and held while serving on active duty was private/E-2.  The available NPRC file documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant’s file is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, there is a properly constituted DD Form 214 on file that shows he was separated under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character), paragraph 1c, by reason of undesirable habits and traits of character and that he received a UD on 17 February 1959.

5.  The applicant's DD Form 214 lists his date of birth as 24 July 1937 in item 6 (Date of Birth) and it shows he completed a total of 4 years, 6 months, and 17 days of creditable active military service.  It further shows that during the period covered by the DD Form 214 he earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The applicant authenticated this document with his signature on the date of separation and there are no documents on file that indicate the applicant ever tried to correct his date of birth while he was serving on active duty.


6.  The applicant provides a birth certificate and driver's license that list his date of birth as 24 July 1939.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 
15-year statute of limitations.

8.  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.  A UD was normally considered appropriate; however, the separation authority could issue a general under honorable conditions discharge (GD) or HD if it was warranted based on the member's overall record of service.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a, provides that an HD is a separation with honor and entitles the recipient to benefits provided by law and 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.  Paragraph 3-7b provides that a GD 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 HD.  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's contention that he was 14 when he enlisted and that his misconduct was the result of his youth and immaturity was carefully considered.  However, there is insufficient evidence to support this claim and, even if true, this factor is not sufficiently mitigating to support granting the requested relief.

2.  Notwithstanding the date of birth listed on the birth certificate and driver's license provided by the applicant that show his date of birth as 24 July 1939, the available military documents indicate the applicant's date of birth was 24 July 1937, making him approximately 17 1/2 years old on the date of his entry on active duty.


3.  Further, the evidence shows he completed nearly 5 years of active duty service prior to his discharge which is an indication that had the maturity and ability to honorably perform his military service if he had elected to do so.  There is no indication that his date of birth or age were ever in question at the time of his enlistment or at any other time during his nearly 5 years of active military service, or that he ever attempted to correct the record while serving or at the time of his discharge or in the nearly 50 years that have passed since his discharge prior to now.  As a result, this factor is not sufficiently mitigating to support an upgrade of his discharge at this late date.

4.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that confirms he was discharged under the provisions of Army Regulation 635-208, paragraph 1c, by reason of undesirable habits and traits of character and that he received a UD.  Therefore, Government regularity in the discharge process is presumed.  Absent evidence to the contrary, it is concluded that his separation processing was accomplished in accordance with the applicable regulation.

5.  The available evidence documents no acts of valor, significant achievement, or service warranting special recognition.  There is no available evidence of record or independent evidence to support a conclusion that his military service was sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time of his discharge or that would support an upgrade of his discharge at this late date.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

6.  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 the aforementioned 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)                                         AR20080018674



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018674



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1