IN THE CASE OF:	  

		BOARD DATE: 	        14 June 2009

		DOCKET NUMBER:  AR20090004358 


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 an upgrade of his general discharge to an honorable discharge and correction of his records to show his date of birth (DOB) as 23 November 1929 instead of 23 November 1927.

2.  The applicant states that he was wrongfully tried on false charges and that upon his enlistment he gave a false birth date.

3.  The applicant provides a copy of his WD AGO Form 53-58 (Enlisted Record and Report of Separation-General Discharge) and General Discharge Certificate, dated 12 July 1949; a copy of his picture; a copy of a birth note showing his DOB as 23 November 1929; a copy of his certificate of birth, dated 23 November 1929; a copy of a letter by a retired General Officer, dated 9 February 2009, to a Member of Congress; and a picture of a Veterans of Foreign Wars service cap, in support of his 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 the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-58 shows he enlisted in the Regular Army and entered active duty in Buffalo, NY, on 28 January 1946.  A copy of the applicant's enlistment contract is not available for review with this case.

4.  The facts and circumstances pertaining to the applicant's discharge are not available for review with this case; however, item 40 (Reason and Authority for Separation) of his WD AGO Form 53-58 indicates that the applicant was separated at Camp Kilmer, NJ, on 12 July 1949, under the provisions of Army Regulation 615-360, at the expiration of his term of service (ETS) with a general character of service.  He had completed 1 year, 6 months, and 1 day of continental service and 1 year, 6 months, and 3 days of foreign service.  Item 10 (Date of Birth) of this form shows he was born on 23 November 1927 and item 55 (Remarks) shows he had 161 days of lost time.

5.  The applicant submitted a copy of his certificate of birth that shows he was born on 23 November 1929.

6.  In a letter, dated 9 February 2009, authored by a retired General Officer and addressed to a Member of Congress, the retired General Officer states that the applicant struck a noncommissioned officer (NCO) after the NCO insulted him and that his actions resulted in 161 days of confinement due to a General Court-Martial.  The retired General Officer also states that there is evidence that the applicant was railroaded and that several witnesses lied about what actually happened.  

7.  Army Regulation 615-360, then in effect, set forth the general provisions governing the discharge of enlisted personnel.  Section III discussed the factors governing issuance of Honorable and General Discharge Certificates.  It provided, with certain exceptions, that an Honorable Discharge Certificate would be furnished when an individual had character ratings of at least “very good,” had efficiency ratings of at least “excellent,” had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial.  

8.  War Department Technical Manual (TM) 12-236 (Preparation of Separation Forms), in effect at the time, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the separation document.  In pertinent part, it states that the WD AGO Form 53-58, issued to members with a general character of service, is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  Item 10 of this form shows the member's date of birth.

9.  Army Regulation 635-200 (Personnel Separations) is the current regulation that sets forth the general provisions governing the discharge 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and his DOB should be corrected.  

2.  With respect to his DOB, the applicant's reconstructed record is void of his initial enlistment document that shows the DOB he used upon entry into military service.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant's DOB in this case.

3.  A copy of this decisional document along with his application will be filed in the applicant's official military personnel file.  This should serve to clarify any questions or confusion regarding the different dates of birth and adequately document his date of birth in his record.

4.  With respect to the discharge upgrade, the applicant's record is void of the facts and circumstances that led to his discharge.  However, his WD AGO Form 53-58 shows he was separated on 12 July 1949 upon his ETS and that his character of service is general.  Notwithstanding the letter submitted by the retired General Officer, in the absence of evidence to the contrary it is presumed that his court-martial was found to be legally sufficient.  Therefore, there is insufficient evidence to upgrade the applicant's 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)                                         AR20090004358





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ABCMR Record of Proceedings (cont)                                         AR20090004358



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