IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100009568 


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.

2.  The applicant states, in effect, that he was told if he took a DD Form 258A (Undesirable Discharge Certificate) at the time, it was considered an early discharge and he would be reinstated 6 months after leaving the Army.  He assumed this had been corrected when he read the bottom of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) stating, "Recorded July 10, 1973 at 11:37 a.m. in U.S. Honorable Discharges Book 68 Page 301 San Joaquin County Records."  He adds that he worked in maintaining the radars in the integrated fire control van during the Nike Missile Program.

3.  The applicant provides the following documents:

* DD Form 214, dated 1 October 1957
* character reference letter, dated 21 July 1989
* newspaper article
* Veterans Administration (VA) file number card

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 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 his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair/impartial review of this case.

3.  His DD Form 214 shows he enlisted in the Regular Army for a period of 3 years on 29 March 1956.  This form also shows that at the time of his discharge he held military occupational specialty 225.10 (Surface to Air Missile Launch Crewmember) and he was assigned to Company E, U.S. Army Garrison, Presidio of San Francisco, CA.

4.  The facts and circumstances surrounding his discharge are not available for review with this case; however, his reconstructed record contains a properly-constituted DD Form 214 that shows he was discharged on 1 October 1957 in accordance with Army Regulation 635-208 (Personnel Separations – Discharges - Unfitness  - Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) by reason of unfitness with an under other than honorable conditions discharge and he was issued an Undesirable Discharge Certificate.  This form also shows he completed a total of 1 year, 1 month, and 1 day of creditable active service with 155 days of lost time.

5.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  He submitted a copy of his VA card and an undated newspaper clipping regarding discharge reviews.  The article stated that members who received a discharge under other than honorable conditions could apply for a review of their discharge without regard to the 15-year rule.  The deadline was established as 1 January 1980.  He also submitted a character reference letter, dated 21 July 1989, wherein the author, a U.S. Army Reserve sergeant, stated he had known the applicant for 7 months and in all his dealings with him, he found him to be honest, forthright, and reliable.

7.  Army Regulation 635-208, in effect at the time, set forth the policy for the administrative separation of enlisted personnel for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  The regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

8.  Army Regulation 635-200 (Personnel Separations), 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to an honorable discharge and the evidence he submitted were carefully considered; however, they are not sufficiently mitigating to grant him the requested relief.

2.  The applicant's record is void of the facts and facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 1 October 1957 under the provisions of Army Regulation 635-208 by reason of unfitness with a discharge under other than honorable conditions.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  His contention that his DD Form 214 was recorded in the "Honorable Discharges Book" of the county records is noted.  However, the inadvertent misfiling of this form by the county recorder neither invalidates it nor does it change the fact that at the time of his discharge, he received an Undesirable Discharge Certificate.

5.  The Army has never had a policy wherein a member's discharge is upgraded due to the passage of time.  The applicant's record of service was not satisfactory, as evidenced by his 155 days of lost time, and is insufficiently meritorious to warrant upgrading his discharge to either a general under honorable conditions or an honorable discharge.  Therefore, he is not entitled to 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)                                         AR20100009568



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ABCMR Record of Proceedings (cont)                                         AR20100009568



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