IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090008788 


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 undesirable discharge. 

2.  The applicant states that he was not in an absent without leave (AWOL) status on the said date.  He adds that he had a permission to go home for the weekend by the officer of the day because he could not assign him to a bed.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 11 January 1954, and a letter, dated 6 May 2009, from his spouse, 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 DD Form 214 shows he enlisted in the Regular Army for a period of 3 years and entered active duty in Lowell, MA, on 13 April 1951.  This form further shows that at the time of his separation, the applicant held an Artillery military occupational specialty and was assigned to the 32nd Tank Company of the 32nd Infantry Regiment.  

4.  The applicant’s DD Form 214 further shows that he completed 2 years, 5 months, and 10 days of creditable active military service, of which 1 year and   7 days was foreign service.  

5.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the Purple Heart, the Combat Infantryman Badge, the Korean Service Medal with two bronze service stars, the United Nations Service Medal, and the National Defense Service Medal.

6.  Item 29 (Wounds Received as a Result of Action with Enemy Forces) shows the applicant suffered a fragment wound to his face and neck on 4 November 1952 in Korea.

7.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the applicant's DD Form 214 shows he was discharged on 11 January 1954 under the provisions of Army Regulation 615-368 (Personnel Separations) with an undesirable character of service.  Furthermore, the applicant's DD Form 214 shows he enlisted on 13 April 1951 and was discharged on 11 January 1954, for a total of 2 years, 8 months, and 30 days.  However, he was only credited with 2 years, 5 months, and 10 days, indicating 3 months and 20 days of lost time. 

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.



9.  The applicant’s wife provides a letter, dated 6 May 2009, supporting the applicant’s request.  In it she provides an overview of the applicant's assignments and awards.  She adds that when rotated out of Korea, he was ordered to report to an anti-aircraft site in Quincy, MA and reported on his scheduled report date, which was a Saturday.  The officer of the day could not assign him a bunk because everyone was gone for the weekend and since he lived in Lowell, MA, the officer of the day allowed him to go home for the weekend.  Upon return to his unit on Monday, he found out that he had been reported in an AWOL status and was stripped of his stripes.  He was then charged and was given an undesirable discharge.  He has since regretted his actions many times and tried to rectify the situation on several occasions.  

10.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 615-368, also stated, in pertinent part, that a board of officers would recommend that the individual be either discharged because of unfitness, unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under Army Regulation 615-369, without referral to another board) might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warrant.  As examples, such circumstances would apply where the cause of unfitness had been minor, relative to the length of efficient service or where there had been a definite effort at self control, or where an individual had, during his current period of service, distinguished himself by an act of heroism, which in itself reflected great credit on the individual and the military service.  

12.  Army Regulation 615-369, in effect at the time, set forth the basic authority for the separation of enlisted personnel for inaptitude or unsuitability.  The regulation also provided that discharge for unsuitability would be effected when it was determined that an individual had demonstrated maladaptability for further military service for character and behavior disorder, mental deficiency, and enuresis.  The regulation also provided that when discharged because of inaptitude or unsuitability a general discharge would be furnished.   


13.  Army Regulation 635-200 (Personnel Separations) governs the separation of enlisted personnel.  Paragraph 3-7a, in pertinent part, states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

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's contention that his discharge should be upgraded and the evidence he provided as well as his entire service record, including his combat service and awards, was carefully considered; however, there is insufficient evidence to grant him the requested relief.

2.  The facts and circumstances of his discharge are not available for review with this case.  However, the applicant's DD Form 214 confirms that he was discharged under the provisions of Army Regulation 615-268 with an undesirable character of service.  The applicant's DD Form 214 lists the authority for his separation as Army Regulation 615-368.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations at the time, with no procedural errors, which would tend to jeopardize his rights.  It is also presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review.  

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not 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)                                         AR20090008788



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ABCMR Record of Proceedings (cont)                                         AR20090008788



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