IN THE CASE OF:	 

		BOARD DATE:	        4 JUNE 2009

		DOCKET NUMBER:  AR20090002205 


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 discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, he was involuntarily forced into the service by his wife and her mother.  He also states, in effect, that since he only completed the 7th grade he was unable to understand the rules and regulations and this resulted in him being in trouble and unable to adjust to military life.  

3.  The applicant submits a copy of his DD Form 214 (Armed Forces of the United States Report of Discharge of Transfer or Discharge) and a self authored statement in support of this 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 was inducted into the Army of the United States on 10 April 1957 for a period of 3 years.  He completed the required training and was awarded military occupational specialty (MOS) 120.00 (Pioneer).  The highest rank he attained while serving on active duty was Private (E-1).

3.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review by the Board.  However, the record of evidence does include a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that the applicant was discharged on 10 September 1958, in pay grade E-1 and that he received an undesirable discharge under the provisions of Army Regulation 635-208, SPN 387, by reason of misconduct, with an under other than honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 8 months, and 1 day of creditable active service.

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

5.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for undesirable (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warrant an undesirable discharge was normally issued. 

6.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual. 

7.  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 applicant’s contentions were carefully considered and found to be without merit.

2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted
DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge and it is authenticated by the his signature in Item 34 (Signature of Person Being Transferred or Discharged).

3.  This Board is not an investigative body but rules on cases legality before it based on the evidence of record and whether an error or an injustice exists in that record.  The rule of law pertinent to the Board provides for consideration of all cases with the presumption of administrative regularity, and that applicants have the burden of proving an error or injustice by a preponderance of the evidence.  The necessary presumption of regularity dictates that what action was taken by the Army was appropriate unless evidence submitted by the applicant may show or convince the Board otherwise.

4.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this 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.



      _______ _   _xxx______   ___
               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)                                         AR20090002205



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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