IN THE CASE OF:	  

		BOARD DATE:	    27 July 2010

		DOCKET NUMBER:  AR20100000735 


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 under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states the incident that led to his discharge was an isolated incident and did not reflect all of his prior service.  He states:

   a.  he had two prior periods of honorable active duty service; and

   b.  he is now 78 years old and he has not had any problems in his civilian life; however, this stigma has been hanging over his head for a very long time.  He adds his life was not defined by his one-time mistake and he believes he was a good Soldier other than for this one-time incident.

3.  The applicant provides copies of three separation documents, a military training certificate, award, and newspaper article 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 service 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, the three DD Forms 214 (Reports of Separation from the Armed Forces of the United States) that are available offer sufficient evidence to constitute a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  A DD Form 214 that shows the applicant enlisted in the Regular Army (RA) for a period of 3 years on 22 January 1949 and he was honorably discharged on
30 October 1951 for immediate reenlistment.  At the time he had completed
2 years, 9 months, and 9 days of net active service this period, and 2 years, 
6 months, and 10 days were foreign service.  This document also shows:

   a.  he successfully completed the European Command Intelligence School in September 1949 and he was awarded military occupational specialty (MOS) 4677 (Military Police); and

   b.  he was promoted to corporal on 23 February 1951;

   c.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the Army of Occupation Medal with Germany Clasp; and

   d.  item 28 (Most Significant Duty Assignment) shows the 62nd Highway Patrol Company [Germany].

4.  A DD Form 214 shows that the applicant reenlisted in the RA for a period of
3 years on 31 October 1951 and he was honorably discharged on 4 November 1954 based on expiration of term of service.  At the time he had completed
3 years and 5 days of net active service this period; 2 years, 9 months, and
9 days of other service; 5 years, 9 months, and 14 days of total net service for pay purposes; and 2 years, 5 months, and 17 days of foreign service.  This document also shows:

   a.  he was promoted to sergeant on 30 April 1953;

   b.  item 27 shows the Good Conduct Medal, Army of Occupation Medal with Germany Clasp, Korean Service Medal, United Nations Service Medal, and National Defense Service Medal; and

   c.  item 28 shows the 517th Military Police Company (Service) [Korea].

5.  The applicant’s separation packet is not available.

6.  A DD Form 214 shows the applicant enlisted in the RA for a period of 3 years on 10 January 1955 and he was discharged under other than honorable conditions on 22 October 1957 under the provisions of Army Regulation 635-89:

   a.  At the time he had completed 1 year, 11 months, and 13 days of net active service this period; 5 years, 9 months, and 14 days of other service; 7 years,
8 months, and 27 days of total active service; and 10 months and 6 days of foreign service; 

   b.  Item 12 (Last Duty Assignment and Major Command) shows the Military Police Detachment, Headquarters and Headquarters Company, U.S. Army General Depot; and

   c.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Commendation Medal (formerly Commendation Ribbon with Metal Pendant) and Expert Marksmanship Qualification Badge with Pistol Bar.

7.  On 31 July 1980, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his under other than honorable conditions discharge.  On 7 May 1981, the ADRB notified the applicant that efforts to reconstruct his Official Military Personnel File had been unsuccessful.  Therefore, sufficient documentation for review by the ADRB could not be obtained and unless the applicant decided to appear before the board in person to provide verbal testimony his case would be administratively closed without further action.  There is no evidence the applicant appeared before the ADRB or that the ADRB rendered a decision on his case.

8.  In support of his application, the applicant provides the following documents:

   a.  a European Command Intelligence School, Military Police Division, certificate that shows the applicant successfully completed the Military Police course on 22 September 1949;
   b.  a Commendation Ribbon with Metal Pendant certificate, dated 27 October 1954, that was awarded to the applicant for meritorious service in the Far East Command (Korean Operation) from 28 January 1953 to 27 July 1954; and

   c.  a May 1979 newspaper article in which the President, Associated Oregon Industries, commended the applicant for being an exceptional businessman in his community and a strong advocate for the Associated Oregon Industries, Oregon Retail Council, and interests of small businesses.  He also noted the applicant was selected as Oregon Retail Council’s Retailer of the Year in 1977.

9.  Army Regulation 635-89 (Personnel Separations - Homosexuals), in effect at the time, prescribed criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  Paragraph 3 provided policy, including the separation criteria and character of service.  It shows:

	a.  true, confirmed, or habitual homosexual personnel, irrespective of sex, will not be permitted to serve in the Army in any capacity and prompt separation of known homosexuals from the Army is mandatory; and that

   b.  individuals who admit to being confirmed homosexuals or admit to committing one or more overt acts of homosexuality while in service will normally be separated under other than honorable conditions if, because of the improbability of successful trial, they are separated administratively.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It 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 that his discharge should be upgraded to a general discharge under honorable conditions because the incident that led to his discharge was an isolated incident that did not reflect all of his prior honorable active duty service.




2.  In the absence of evidence to the contrary, it is concluded that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and he was properly discharged.

3.  The applicant's contentions for upgrade of his discharge were carefully considered:

   a.  The Personnel Separations regulation in effect at the time of the applicant’s discharge provided that an under other than honorable discharge certificate was normally appropriate [emphasis added] if the individual was separated administratively;

	b.  At the time of his discharge, the applicant had completed more than
5 years and 9 months of prior honorable active duty service, which included service in occupied Germany after World War II and also in Korea during the Korean War.  Records also show he attained the rank of sergeant and was awarded the Army Commendation Medal; and
   
   c.  The applicant’s post service conduct and contributions to his community over the past 50 years are both noteworthy and commendable.

4.  In consideration of the applicant’s case, the ABCMR does not condone or absolve the applicant from personal responsibility for his conduct and behavior during the period of service under review.  Nonetheless, there is sufficient evidence to conclude the applicant’s under other than honorable conditions discharge is inequitable based upon a review of his entire record of military service, particularly his consistent outstanding performance of duty prior to the surfacing of issues that appear to have contributed to his discharge, along with his post-service conduct and contributions to his community.

5.  Thus, it is concluded that the characterization of his service is now inequitable and it would be appropriate to correct the applicant’s records.  Therefore, in view of the foregoing and as a matter of equity, the applicant’s military service records should be corrected to show he was discharged under honorable conditions effective 22 October 1957.






BOARD VOTE:

__X____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his 22 October 1957 DD Form 214 by:

   a.  deleting from item 13a (Character of Service) the entry “UNDER OTHER THAN HONORABLE CONDITIONS” and adding “UNDER HONORABLE CONDITIONS”; and

   b.  deleting from item 13b (Type of Certificate Issued) the entry “DD Form 258” and adding “DD Form 257A.”




      _______ _   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)                                         AR20100000735



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Pr