IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090001300 


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 honorable. 

2.  The applicant provides no explanation. 

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) and a character reference letter 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 records are not available 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 to conduct a fair and impartial review of this case.  

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army on 
26 August 1955  for a period of 3 years and was awarded military occupational specialty 161.00 (anti-aircraft artillery automatic weapons crewman).   

4.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, discharge orders and the applicant's DD Form 214 show that he was discharged on 16 July 1956 with an undesirable discharge under the provisions of Army Regulation 635-208 for habits or traits of character manifested by misconduct.  He had served 3 months and 27 days of creditable active service with 207 days of lost time.

5.  In support of his claim, the applicant provided a character reference letter that was signed by four individuals.  They attest that the applicant is an outstanding citizen, and that he is honest, trustworthy, and very dependable.  They also indicate that they have known the application for over 50 years.    

6.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character.  The regulation provided for the separation of personnel who:  
(1) gives evidence of an antisocial or amoral trend, chronic alcoholism, drug addiction, pathological lying, or misconduct; (2) possesses unclean habits; 
(3) repeatedly commits petty offenses not warranting trial by court-martial; 
(4) is a habitual shirker; (5) is recommended for discharge by a disposition or other board of medical officers because he possess a psychopathic (antisocial) personality disorder or defect, or is classified as having “no disease” by the board, and his record of service reveals frequent disciplinary actions because of infractions of regulations and commission of offenses, or it is clearly evident his complaints are unfounded and are made with the intent of avoiding service; or 
(6) demonstrates behavior, participation in activities, or associations which tend to show that he is not reliable or trustworthy.  The regulation also provided that when discharged because of undesirable habits or traits of character an Undesirable Discharge Certificate would be furnished. 

8.  Army Regulation 635-200 sets forth the basic policy governing 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.  

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request to upgrade his discharge to honorable or general discharge.

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)                                         AR20090001300





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ABCMR Record of Proceedings (cont)                                         AR20090001300



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