IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080016711 


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 1955 undesirable discharge be upgraded to an honorable or general discharge under honorable conditions.

2.  The applicant states that he was considered "undesirable" by his commander because the commander was very religious and had no tolerance for individuals who were infected with a venereal disease (VD).  He states he was inexperienced in a lot of matters, including love, when he met a girl at Fort Irwin, California and fell in love.  He states he had unprotected sex with the girl and was infected with VD from her on two separate occasions.  

3.  The applicant states that his commander's statement during the separation board proceedings indicated that he had sex with three different women in one night was not true but confirms he did have sex with the same girl he had been seeing and became infected.  He states he was only guilty of falling love with a girl who was more promiscuous than what he had been led to believe.

4.  The applicant maintains that his discharge was too harsh, that he was well liked by the people he worked with and was committed to being a good Soldier.  He states he needs his discharge upgraded to permit him to access veteran's benefits.




5.  The applicant provides his self-authored statement, a copy of his September 1955 Record and Report of the Proceedings of his Board of Officers, his October 1955 installation clearance certificate, an August 1955 request for and approval of a detail to the Supply Handling Course, and a copy of his Department of Defense (DD) Form 214 (Report of Separation from the Armed Forces of the United States).

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

3.  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, the applicant provided sufficient documents to reconstruct a record for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records that primarily consist of a copy of the applicant's September 1955 Record and Report of the Proceedings of his Board of Officers, his October 1955 installation clearance certificate, an August 1955 request for and approval of a detail to the Supply Handling Course, and a copy of his DD Form 214.

4.  According to the applicant's separation document, he enlisted and entered active duty for a period of 3 years on 29 January 1954.  He successfully completed training as a cook and was assigned as a cook's helper at "Camp" Irwin, California.

5.  On 30 August 1955 the applicant requested that he be detailed to the Supply Handling Course scheduled for the period 7 October through 2 December 1955.  The Commissary Officer, a first lieutenant, recommended approval.

6.  On 9 September 1955 the applicant's unit commander requested a board of officers be convened to determine if the applicant should be separated from the service under the provisions of Army Regulation 615-368 for unfitness.  A 
22 September 1955 medical statement noted the applicant had two separate cases of “gonorrheal infection,” one in July and again in September 1955.

7.  The board of officers convened on 28 September 1955.  The board heard testimony from three individuals who all indicated the applicant was a good worker at the installation commissary.  The applicant's unit commander, however, testified the applicant reported with a case of VD in July 1955 and then 30 days later returned with a second case.  The commander noted the applicant had stated he had had relations with three women in one night and had become infected.  The commander testified that he could not in clear conscious recommend the applicant for schooling and noted that other than the repeated VD infections he had no other complaints about the applicant.

8.  The board of officers ultimately concluded there was evidence of unfitness which rendered retention in the service undesirable and recommended the applicant be discharged under the provisions of Army Regulation 615-358 for unfitness.

9.  The board's recommendation was approved.  The applicant's unit commander noted on the applicant's installation clearance certificate that his conduct was poor and efficiency unsatisfactory.

10.  On 21 October 1955 the applicant was discharged and his service characterized as undesirable.  The applicant had 1 year and 6 months of creditable active Federal service at the time and was discharged in the grade of 
E-1.

11.  Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends.  Action to separate an individual was 




to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate for members separating under these provisions.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), currently in effect, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, also 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.  Although the comments of the applicant's supporters, that he was a good worker, have been considered, the applicant's argument that he essentially fell in love with the wrong girl is not sufficiently mitigating to warrant the relief requested.

2.  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.  In this instance, the "presumption of regularity" is based on Army Regulation 615-368, which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  In the absence of evidence to the contrary, it appears 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.  Therefore, the applicant is not entitled to upgrade of the characterization of his service or correction of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20080016711



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ABCMR Record of Proceedings (cont)                                         AR20080016711



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