IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000767 


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 that his undesirable discharge be upgraded to honorable.

2.  The applicant states that while serving in the Korean War he received the Combat Infantryman Badge, Korean Service Medal with three bronze service stars, Presidential Unit Citation, and the Purple Heart.  He was wounded in action on 27 November 1950.  On his return to the United States he contracted malaria.  He also suffered from shell shock, known today as post traumatic stress disorder.  As a result, he had lapses in judgment resulting in trouble with the law.  That was the only time he had such trouble but it got him an undesirable discharge.  He was and still is proud to have served his country.  He would like to be recognized for his service by having his undesirable discharge upgraded to honorable.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).

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 for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request.

3.  On 28 July 1949, the applicant enlisted in the Regular Army for 4 years.  He was awarded military occupational specialty 1745 (Light Weapons Infantryman).

4.  The discharge packet is not available for review.  However, the applicant’s DD Form 214 shows that on 25 September 1952, he was discharged under the provisions of Army Regulation 615-366 (Misconduct).  He had completed 
2 years, 5 months, and 24 days of creditable active duty service and had 244 days of lost time.

5.  Item 38 (Remarks) of the applicant’s DD Form 214 indicates that he was discharged due to conviction by civilian authorities while absent without leave (AWOL).

6.  Army Regulation 615-366 (Enlisted Personnel Discharge), in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, absence without leave, and desertion).

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

8.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.


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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to honorable based on his good service during combat in the Republic of Korea.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

3.  The available evidence clearly shows that the applicant was AWOL at the time of his civilian conviction.  This misconduct and lost time renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  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)                                         AR20100000767





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ABCMR Record of Proceedings (cont)                                         AR20100000767



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