BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090019109 


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 his undesirable discharge be upgraded to honorable.

2.  The applicant states the following:

* he doesn't understand why he received this type of discharge
* he doesn't deserve it because he served 3 years, 9 months, and 20 days
* he enlisted for 3 years
* his service was extended for another year because of the Korean conflict
* he would like this matter cleared up

3.  The applicant provides a self-authored statement in support of 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 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 complete military records are not available to the Board for review.  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 enlisted in the Regular Army on 29 March 1951 for 3 years.  He completed 3 years and 3 months of foreign service.

4.  The applicant's discharge packet is not available.  However, his DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was discharged from active duty on 2 February 1955 under the provisions of Army Regulation 615-368 (Enlisted Personnel - Discharge - Unfitness) for unfitness.  He completed 3 years, 9 months, and 21 days of active military service with 15 days of lost time.

5.  The evidence of record does not contain a court-martial or nonjudicial punishment under Article 15, Uniform Code of Military Justice.

6.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within that board's 15-year statute of limitations.

7.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana, an established pattern for shirking, or an established pattern showing dishonorable failure to pay just debts.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7a 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).

9.  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 he doesn't understand why he received this type of discharge.  In the absence of evidence to the contrary, the applicant's discharge proceedings under the provisions of Army Regulation 615-368 for unfitness are presumed to have been administratively correct and in conformance with applicable regulations.

2.  The applicant's DD Form 214 supports his contention that he enlisted for 3 years and his service was extended for another year because of the Korean conflict.  However, the evidence of record does not indicate the actions taken in his case were in error or unjust.

3.  Although there is no record the applicant was convicted by a court-martial or received nonjudicial punishment, his DD Form 214 shows 15 days of lost time.

4.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as undesirable.

5.  Therefore, at this late date there is no basis for granting the applicant's request for an upgrade of his discharge to an honorable discharge.

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)                                         AR20090019109



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ABCMR Record of Proceedings (cont)                                         AR20090019109



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