IN THE CASE OF:	

		BOARD DATE:	  23 July 2009  

		DOCKET NUMBER:  AR20090005980 


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 fully honorable discharge.  He also requests correction of his first name on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) from "H____s" to "H___y."

2.  The applicant states that he is unsure how his first name got mixed up.  He adds that he did his best to serve honorably; however, the times were turbulent and unfortunately prejudice was rampant.  He served honorably until he could not take the abusiveness to include the name calling from his superiors.  He and other members of the same race were made to feel inferior in what was supposed to be an integrated Army.  The situation became so unbearable that he and others left their unit in Korea and tried unsuccessfully to return to the United States.  They were subsequently reported in an absent without leave (AWOL) status for 13 days and were ultimately court-martialed.  But even during the court-martial, he and the others were not allowed to present their side of the story, how they felt, and the reason they went AWOL.

3.  The applicant provides a copy of his DD Form 214, dated 12 April 1954, in support of his request.

4.  The applicant states that he also submitted a copy of his recently found birth certificate, a copy of a county sheriff’s office report, and a statement of support from a friend, in support of his request; however, none of these documents were enclosed with 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 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 reconstructed records contain a copy of his pre-induction Report of Medical Examination, dated 3 April 1952, his first name is shown as "H____s."  

4.  The applicant's DD Form 214 shows he entered active duty in Montgomery, AL, on 5 June 1952.  This form further shows at the time of separation, the applicant held military occupational specialty 1641 (Lineman) and that his most significant duty assignment was with the 45th Signal Company.

5.  The applicant’s reconstructed records contain a copy of a WD AGO Form 55A (Clinical Record Brief) that shows he was admitted to the U.S. Army Hospital, Camp Gordon, GA, on 20 June 1952.  This form lists the applicant’s first name as "H____s."

6.  The applicant’s DD Form 214 further shows that he completed 1 year, 9 months, and 25 days of creditable military service of which 1 year was foreign service in Korea.

7.  The applicant’s reconstructed records show he underwent a psychiatric evaluation, on 29 June 1953, at the Office of the Division Surgeon, 4th Infantry Division, Korea.  The psychiatric report lists his first name as "H____s."  Additionally, in listing the applicant’s background and history, this report refers to the applicant’s previous misconduct  which included speeding as well as a court-martial action for being AWOL from Camp Gordon, GA.  The facts and circumstances surrounding these issues are not available for review with this case.

8.  The applicant’s reconstructed records also contain a request for a psychiatric examination, submitted by his immediate commander on 3 January 1954.  This request lists the applicant’s first name as "H____s."

9.  The applicant’s reconstructed records further contain a neuropsychiatric examination report, dated 14 January 1954, that shows his first name as "H____s."  This report also mentions the applicant’s previous convictions by summary court-martial action in 1953 and that he was reduced from private first class (PFC) to private (PVT) on 20 June 1953 for misconduct.  The facts and circumstances surrounding the court-martial and/or the misconduct are not available for review with this case.

10.  The facts and circumstances surrounding the applicant’s separation action are not available for review with this case.  However, his DD Form 214 shows he was separated, on 12 April 1954, in the rank/grade of PVT, under the provisions of Army Regulation 615-368 with an Undesirable Discharge Certificate.  Item 1 (Last Name, First Name, Middle Name) of the DD Form 214 shows his first name as "H____s" and item 38 (Remarks) shows he had 13 days of lost time.

11.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct.  The regulation also provided that when discharged because of unfitness an undesirable discharge would be furnished.   

13.  Army Regulation 635-200 is the current regulation that governs 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.

14.  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 contends that his discharge should be upgraded and his first name should be corrected.

2.  The applicant’s initial induction and/or enlistment record is not available for review with this case.  However, the applicant’s first name shown on his DD Form 214 is consistent with the first name used on several medical documents that are available which indicate he used the first name of H____s throughout his military service.  The applicant authenticated his DD Form 214 by placing his full signature in the appropriate block, indicating that the first name "H____s" was correct.  There is no indication that he used the first name of "H___y" during his military service.  

3.  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 first name in this case.  However, a copy of this decisional document, along with his application will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion regarding the different first names and adequately document his correct first name in his record. 

4.  With respect to the applicant’s discharge, the racial and/or discrimination issues that were prevalent in society at the time are not in question.  However, the facts and circumstances of the applicant’s separation are not available for review with this case.  It is unclear if he addressed these issues with his chain of command and/or support channels.  Nevertheless, his reconstructed records suggest that his military service included a summary court-martial action, one instance of reduction as a result of misconduct, and 13 days of lost time.

5.  Absent evidence to the contrary, it is presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  It is also presumed that considering the information presented by the applicant together with the evidence of record, applicable law and regulations, the type discharge directed and the reasons therefore were appropriate.  The applicant has failed to show that his undesirable discharge was in error or unjust.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit 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.




      _______ _   __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)                                         AR20090005980



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ABCMR Record of Proceedings (cont)                                         AR20090005980



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