IN THE CASE OF:	  

		BOARD DATE:	    16 September 2010

		DOCKET NUMBER:  AR20100009886 


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 general discharge to honorable.

2.  The applicant states he served his country honorably and a mistake was made at the time of his discharge.  He adds that he did nothing to warrant a general discharge and he wants the record to reflect he served honorably.

3.  The applicant provides 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 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, a discharge order and his DD Form 214 offer sufficient evidence to constitute a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  Headquarters, Fort Devens, MA, Special Orders Number 81, dated 13 April 1953, discharged the applicant under the provisions of Army Regulation 615-365 [Personnel Separations - Convenience of the Government], effective 14 April 1953.  The order directed that the applicant be furnished a DD Form 214 and
DD Form 257A (General Discharge [Certificate]).

4.  The applicant's DD Form 214 shows he enlisted and entered active duty in the Regular Army on 16 September 1949.  He was discharged under the provisions of Army Regulation 615-365 for the convenience of the government on 14 April 1953 with a character of service of general under honorable conditions.  At the time he had completed 3 years, 3 months, and 15 days of net active service and 2 years, 2 months, and 6 days of foreign service.  This document shows in:

   a.  item 3 (Grade - Rate - Rank and Date of Appointment) the entry
"PVT 2 (P) 14 APR 53" [Private E-2 (Permanent) 14 April 1953];

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

   c.  item 28 (Most Significant Duty Assignment) the 26th Infantry [Regiment]; and

   d.  item 38 (Remarks) he had 104 days of time lost.

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

6.  Army Regulation 615-365, in effect at the time, prescribed criteria and procedures for the separation of personnel for the convenience of the government prior to expiration of their term of service.

7.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  This regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an honorable discharge because he served his country honorably, he did nothing to warrant a general discharge, and a mistake was made at the time of his discharge.

2.  Records show that special orders directed the applicant's discharge under the provisions of Army Regulation 615-365 with a General Discharge Certificate.  In addition, the information relating to the applicant's discharge that is recorded on his DD Form 214 confirms that which was promulgated in the special orders.

3.  Records show the applicant served on active duty for more than 3 years and
3 months.

   a.   Records also show he held the rank of private (E-2) with an effective date of 14 April 1953.  It is not likely that the applicant was advanced to E-2 on the date of his discharge.  It is more likely that he was reduced in rank on that date.

   b.  Records show the applicant had 104 days of time lost during the period of service under review.

   c.  Thus, the applicant's record of service shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to upgrade of the character of service 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 this requirement.







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)                                         AR20100009886



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ABCMR Record of Proceedings (cont)                                         AR20100009886



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