IN THE CASE OF:
BOARD DATE: 18 March 2010
DOCKET NUMBER: AR20090014102
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 upgrade of his undesirable discharge to a general, under honorable conditions discharge.
2. The applicant states that he was a wheeled vehicle mechanic. However, his battery commander wanted everyone in the battery to become proficient as an artilleryman. When he requested to be excused from that training due to his hearing profile, his battery commander ridiculed him and, later, refused to let him transfer to another company.
3. The applicant explains the events which led to his court-martial; professes his innocence of any wrongdoing; states that his court-martial conviction was vacated and he was released from the stockade, charges that his commander was infuriated when his court-martial conviction was vacated; and that his commander harassed him thereafter.
4. The applicant provides documents which he lists in 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 applicants records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant to conduct a fair and impartial review of this case.
3. The applicant's military records show that he enlisted in the Regular Army (RA) on 22 November 1954 and was awarded military occupational specialty (MOS) 630.00 (automotive maintenance helper).
4. On 21 September 1956, Special Court-Martial Order Number 175, published by Headquarters, Seventh U.S. Army, disapproved the findings of guilty and its specification of Charge I against the applicant and directed that all rights, privileges, and property of which the applicant was deprived by virtue of that portion of the findings so disapproved would be restored.
5. On 18 January 1957 the applicant was given an undesirable discharge under Army Regulation 635-208 (Personnel Separations-Discharge-Undesirable Habits and Traits of Character), for unfitness. He had 2 years, 1 month, and 13 days of creditable service and 34 days of lost time.
6. Neither the applicant's court-martial record nor his separation packet is available for the Board's review. A staff member of the Board informed the applicant that his military records were not available on 6 January 2004 and again on 11 February 2009. The applicant resubmitted his request believing that there was sufficient evidence in which to consider his case.
DISCUSSION AND CONCLUSIONS:
1. This Board starts its consideration of a case with a presumption of regularity, that what the Army did was correct. It is up to the applicant to prove otherwise.
2. In this case the applicant contends that his commander violated his physical profile restrictions and harassed him, but has not submitted any evidence to support his contentions.
3. Special Court-Martial Order 175 submitted by the applicant only shows that one charge and its specifications were disapproved. However, since the court-martial order which depicted the findings and sentence of the applicant's trial was not provided to the Board, it is not known how many charges and specifications the applicant was specifically found guilty of.
4. The applicants discharge packet is not available. However, in the absence of evidence to the contrary a presumption of regularity is made and it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. As such, there is insufficient evidence on which to grant the applicant's requested relief.
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) AR20090014102
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090014102
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090021700
The applicant requests upgrade of his undesirable discharge to a general discharge. Counsel states: * The applicant's unit was involved in numerous combat activities in the RVN * He was wounded twice while serving as a gunner and his actions and the action of his unit earned them the Presidential Unit Citation * His troubles began in 1969 when he had conflicts with the new battery commander who was not an experienced combat officer on combat tactics and employment of weapons systems * The...
ARMY | BCMR | CY2011 | 20110011632
In his request for discharge, he acknowledged he understood if his request were approved he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. On 10 March 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he was properly and equitably discharged. However, at the time the applicant was discharged an undesirable discharge was appropriate.
ARMY | BCMR | CY2004 | 20040010458C070208
Jeanette McCants | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The applicant requests that his records be corrected by upgrading his discharge. The applicant states that at the time he was 20 years old and was young and immature, but has had no record or incident of bad conduct since his discharge.
ARMY | BCMR | CY2011 | 20110019387
His unit commander recommended approval of his request with a general discharge. 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. 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.
ARMY | BCMR | CY2010 | 20100022774
The applicant requests that his undesirable discharge be upgraded to a general discharge. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. The evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.
ARMY | BCMR | CY2008 | 20080018643
On 5 August 1968, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 6a, for unfitness. The applicant's military personnel records contain his DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212, Separation Program Number (SPN) 386 with service characterized as under...
ARMY | BCMR | CY2008 | AR20080002202
The applicant requests, in effect, that his Undesirable Discharge be upgraded and the reason for his discharge be changed to a medical discharge. The applicant states, in effect, that he should have been given a medical discharge and not an undesirable discharge. There is no evidence in his service record, and the applicant provided none to show his physical profile and code were changed before he was discharged from the Army.
ARMY | BCMR | CY2010 | 20100014547
Application for correction of military records (with supporting documents provided, if any). The applicant was discharged on 16 April 1973 with an undesirable discharge for unfitness under the provisions of chapter 13, Army Regulation 635-200. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individuals entire record.
ARMY | BCMR | CY2007 | 20070012659C080213
In his initial application to the Board, the applicant stated he had been working for the military and around the military. The applicant submitted a statement with his request for discharge, which statement mentioned only family problems. Furthermore, in his initial application to the Board, when he was under no pressure from anyone in the Army, he did not raise any of the issues (harassment, verbal insults, unjust punishments, forced to make an untrue statement) he raises in his current...
ARMY | BCMR | CY2014 | 20140002300
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. On 17 May 1973, a bar to reenlistment was initiated against him because of his record of NJP, outstanding debts, and insufficient support to his dependents. If the bar was lifted before he departed his unit for discharge, he could be eligible for an honorable discharge and reenlistment in the Army.