IN THE CASE OF:	  

		BOARD DATE: 	        28 May 2009

		DOCKET NUMBER:  AR20090003143 


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.

2.  The applicant states, in effect, that he is 68 years old and is in a nursing home in Chicago, Illinois.  He indicates that while in the Army he was young, immature and home sick and that he did things that he now regrets.  He contends that when he was at Fort Campbell, Kentucky he would receive three day passes but would stay longer because of being home sick.  He points out that he was never court-martialed and his only offense was being absent without leave.  He indicates that he is having some medical problems and is seeking Department of Veterans (DVA) benefits.     

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) 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 was born on 16 September 1940.  He enlisted in the Regular Army on 19 September 1957 for a period of 3 years and was awarded military occupational specialty (MOS) 117.17 (light weapons infantryman).   

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 2 October 1959 with an undesirable discharge under the provisions of Army Regulation 635-208 (Personnel Separations) for unfitness due to an established pattern for shirking and due to an established pattern for showing dishonorable failure to pay just debts.  He had served 2 years and 14 days of total creditable active service.

5.  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.

6.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation stated that members involved in an established pattern of shirking and an established pattern for showing dishonorable failure to pay just debts were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate. 

7.  Army Regulation 635-200 (Personnel Separations), 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.  


8.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, it appears he successfully completed basic combat training and advanced individual training since he was awarded MOS 117.17.  In addition, he served over 2 years of service prior to his discharge.    

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.
 
3.  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)                                         AR20090003143





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ABCMR Record of Proceedings (cont)                                         AR20090003143



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