IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090002067 


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 a general, under honorable conditions discharge.  

2.  The applicant states that after training he served in Korea providing ammunition and supplies to the front lines.  Later, he was transferred to Japan where he got into trouble for insubordination and was sentenced to 6 months confinement and was discharged.  He has lived with the memory of that incident for over 50 years.  Since then he has had a clean and noteworthy record.  He submits references and evidence of his volunteer work.  He wishes to be eligible for a veteran's funeral.

3.  The applicant provides, in support of his request, copies of the response to an application for veterans' assistance; his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 26 October 1954; a DD Form 215 (Correction to DD Form 214), dated 17 February 1955; an Undesirable Discharge Certificate, dated 26 October 1954; an Honorable Discharge Certificate for the period ending 13 May 1953 [certificate in lieu of lost or destroyed discharge], dated 8 October 1956; and three character reference letters.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be upgraded to a general discharge under honorable conditions.

2.  Counsel states that the applicant volunteers by transporting elderly veterans and other senior citizens to medical appointments.  The personnel of the City of
Torrington, Connecticut Veterans Service Office can vouch for the applicant's good character and service to the community. 

3.  Counsel provides no additional documentation in support of the request.
 
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 in 1973.  It is believed that his records were lost or destroyed in that fire.  The available records consist of the documents submitted by the applicant.

3.  The applicant was called from an inactive Reserve status and entered active duty on 14 December 1951.  He was honorably discharged on 13 May 1953 for the purpose of enlistment into the Regular Army (RA).  On 14 May 1953, the applicant enlisted for a period of 4 years.

4.  The applicant was discharged from active duty on 26 October 1954 with an undesirable discharge under the provisions of Army Regulation 615-368 (Enlisted Personnel – Discharge – Unfitness).  He had 1 year and 16 days of creditable service and 150 days lost time during his last period of service.      

5.  The applicant had completed 3 years, 3 months, and 25 days of total net service.

6.  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, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, habitual shirking, and repeated venereal infections.  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.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 
   
7.  The character reference letters consist of the following:

	a.  a state representative, who has known the applicant for over 30 years, finds him to be a man of his word who honors his commitments;

   b.  an individual, who has known the applicant since 1993, attests to his having an upstanding and moral character; and

   c.   another individual, who has known the applicant for 60 years, describes him as a good family friend and a credit to the community.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that since his discharge he has had a clean and noteworthy record.  He submits references and evidence of his volunteer work.  He wishes to be eligible for a veteran's funeral.

2.  The character references are noted, but they do not demonstrate that the discharge, which was characterized by the applicant's in-service behavior and conduct, should be upgraded.  

3.  Entitlement to veterans' benefits is not within the purview of this Board nor is it normally considered a basis for granting relief.

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type of discharge directed and the reasons therefore appear appropriate considering the available facts of the 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)                                         AR20090002067



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ABCMR Record of Proceedings (cont)                                         AR20090002067



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