BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008444 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded due to the fact that he was never subjected to disciplinary action under the provisions of Article 15 of the Uniform Code for Military Justice or by court-martial.  He continues that he was also never informed that he was given a lack of job performance rating.  The applicant states that he served his country honorably with no problems or negative performance ratings and he does not understand why he did not receive an honorable discharge.  The applicant concludes that he desires to have his discharge upgraded in order to become eligible for Department of Veterans Affairs benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 257A (General Discharge Certificate), DD Form 345 (Armed Forces Liberty Pass), travel orders, and what appears to be an extract from a welcome packet for the 867th Field Artillery Battalion as documentary evidence 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 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 available record shows that he enlisted in the Regular Army on 17 January 1956.  The applicant held military occupational specialty 140.00 (Field Artillery Basic) and his final unit of assignment was Headquarters and Service Battery of the 867th Field Artillery Battalion located in the Federal Republic of Germany.

4.  On 6 March 1958, Headquarters, Seventh United States Army, published Redeployment Orders 3S12 directing the applicant's release from assignment and transfer to Returnee-Reassignment Station 1400, Fort Hamilton, New York, and the Transfer Station located at Fort Sheridan, Illinois, for ultimate transfer from active military service.  The orders show the authority for separation of the applicant (and several other Soldiers) was in accordance with paragraph 2 of Army Regulation 635-205 (Personnel Separations - Discharge - Release for the Convenience of the Government) with separation program number (SPN) code 741, and Department of the Army Circular 635-2, dated 19 August 1957.

5.  On 11 April 1958, Headquarters, U.S. Army Transfer Station, Fort Sheridan, published Special Orders 74, directing the applicant's release from assignment and separation from service effective 14 April 1958 under the authority of paragraph 2 of Army Regulation 635-205 with SPN 741 and Department of the Army Circular 635-2, dated 19 August 1957.

6.  The applicant’s DD Form 214 shows he was discharged under honorable conditions in the rank/grade of private first class (PFC)/E-3 on 14 April 1958 under the provisions of paragraph 2 of Army Regulation 635-205 with SPN 741 and Department of the Army Circular 635-2, dated 19 August 1957.  He completed 2 years, 2 months, and 28 days of creditable military service during this period of service; 1 year, 9 months, and 21 days of which was foreign service.
7.  The applicant provides a DD Form 257A which shows he received a general discharge under honorable conditions from the Army on 14 April 1958.

8.  The applicant provides Headquarters, 867th Field Artillery Battalion, Travel Orders, dated 21 August 1957, which show he was authorized to travel to France on or about 2 September 1957 for a period of approximately 13 days.

9.  The applicant provides a DD Form 345, issued by Company B, U.S. Army Transfer Station, Fort Sheridan, on 10 April 1958 which shows he was authorized liberty during normal off duty hours for the period 9 April 1958 to 14 April 1958.

10.  The applicant provides what appears to be an extract from a welcome packet for the 867th Field Artillery Battalion which shows a short history of the unit and a portion of the local policies.

11.  Army Regulation 635-205, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 2 of this regulation provided that the separation of enlisted personnel for the convenience of the government and the type of discharge were the prerogative of the Secretary of the Army and would be effected only by his authority.  Paragraph 2 also listed the various categories for each type of discharge or release from active military service and the appropriate SPN code.  SPN codes, in effect at the time, were issued to all discharging military personnel.  These codes were placed on the DD Form 214 and provided a summary and characterization of the veteran's military service.  These codes were intended solely for use by military recruiters for enlistment/reenlistment review and the Department of Defense for statistical analysis.  This regulation did not mention an SPN of 741.

12.  Army Regulation 635-5 (Personnel Separations - Administrative Separation Procedures and Forms), appendix I, listed all SPNs used at the time.  An SPN of 741 was not listed.

13.  Attempts by the Board staff to obtain a copy of Department of the Army Circular 635-2, dated 19 August 1957, were unsuccessful.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The available evidence of record shows the applicant was issued an order on 11 April 1958 that directed his discharge from military service effective 14 April 1958 under the provisions of paragraph 2 of Army Regulation 635-205 and Department of the Army Circular 635-2, dated 19 August 1957, with an SPN code of 741.  Accordingly, he was discharged on 14 April 1958.

3.  The SPN reflected on the applicant's DD Form 214 appears to be incorrect as it is not listed in Army Regulation 635-5 or Army Regulation 635-205 in effect at the time.  However, in the absence of the complete facts and circumstances surrounding the applicant's discharge from this period of service and Department of the Army Circular 635-2, the appropriate SPN code cannot be determined.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy that requirement.  In the absence of evidence to the contrary, government regularity insofar as the discharge process must be presumed.  Therefore, there is insufficient evidence to show that the applicant is entitled to an honorable discharge.

5.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits that are available to Soldiers who served honorably.

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)                                         AR20090008444



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008444



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1