IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090016650 


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 needs his discharge upgraded to become eligible for Department of Veterans Affairs (DVA) benefits.  He feels that he has paid the price for his stupidity while he was young.  He needs help with the injuries he received while serving in Korea.  His right leg may have to be amputated as a result of his wounds.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from the Armed Forces of the United States) and a Diagnostic Imaging Report.

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 record shows he enlisted in the Regular Army in pay grade E-1 on 20 February 1951, for 3 years.  He completed training and was awarded military occupational specialty (MOS) 640 (light truck driver).  He was promoted to pay grade E-3 (temporary) on 25 September 1951.  He served in Korea from 25 August to 24 December 1951.

3.  On 21 April 1951 the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 9 to 16 April 1951.  He was sentenced to a forfeiture of $50.00 pay and hard labor for twenty days.  The sentence was approved and ordered executed on 23 April 1951.

4.  On 7 October 1951, he sustained wounds to both legs received through enemy action while serving in Korea.

5.  On 30 June 1952, the applicant was convicted by a special court-martial for being AWOL from 23 June to 14 July 1952.  He was sentenced to a reduction to pay grade E-1.  On 21 July 1952, the sentence was approved and ordered executed.

6.  The applicant was promoted to pay grade E-4 on 28 July 1953.  He reenlisted on 29 December 1953 for 4 years.

7.  On 30 June 1954, the applicant was convicted by a special court-martial of three specifications for being AWOL from 22 to 26 April 1954, 27 April to 21 May 1954, and 24 May to 9 July 1954.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $34.00 pay per month for 3 months.  The sentence was approved and ordered executed on 16 August 1954.

8.  On 30 November 1954, the applicant was convicted by a special court-martial for being AWOL from 6 September to 10 December 1954.  He was sentenced confinement at hard labor for 6 months and a forfeiture of $60.00 pay for 6 months.  The sentence was approved and ordered executed on 22 December 1954.

9.  On 12 July 1955, the applicant's unit commander recommended the applicant be given a psychiatric examination for the purpose of submitting a recommendation that he appear before a board to determined the advisability of eliminating him from the service under the provisions of Army Regulation 615-
368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character).
10.  The facts and circumstances surrounding the applicant's discharge are not present in his records.  However, his records contain a copy of his DD Form 214 which shows he was discharged on 23 September 1955 in pay grade E-1, under the provisions of Army Regulation 615-368, with an undesirable discharge.  He was credited with 3 years, 3 months, and 16 days of net active service with 409 days of lost time due to AWOL and confinement.

11.  There is no record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The applicant submitted a copy of a Diagnostic Imaging Report, dated 12 August 2009.  The report shows he underwent a duplex scan of both lower extremities.

13.  Army Regulation 615-368, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  An undesirable discharge was normally issued.

14.  Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, provided for the discharge of enlisted personnel upon expiration of term of enlistment and set forth the general provisions governing the release from active duty of enlisted and inducted persons prior to expiration of their term of service.  Section III - Factors Governing Issuance of Honorable and General Discharge Certificates stated, in pertinent part, that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to a general, under honorable conditions 
discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contention has been noted; however, the evidence of record shows he had accumulated a total of 409 day of lost time due to AWOL and 
confinement during his 3 years period of service.  An absence of this duration is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his discharge.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.

3.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors, which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

4.  The applicant's desire to have his undesirable discharge upgraded so that he can qualify for medical and/or other benefits administered by the DVA for the injuries he sustained during his service in Korea is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the DVA.

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090016650



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ABCMR Record of Proceedings (cont)                                         AR20090016650



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