Search Decisions

Decision Text

ARMY | BCMR | CY2010 | 20100012829
Original file (20100012829.txt) Auto-classification: Denied

		
		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012829 


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:

The applicant defers to counsel.   

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant’s general discharge under honorable conditions to an honorable discharge.

2.  Counsel states the applicant’s contentions that he did not do anything to deserve a general discharge. 

3.  Counsel provides the following:

* A copy of a blank WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge)
* A copy of the applicant’s General Discharge Certificate
* A copy of the applicant’s WD AGO Form 53-58 (Enlisted Record and Report of Separation – General Discharge), for the period ending 
21 January 1949

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.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  The applicant's records were partially destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant’s WD AGO Form 53-58 shows he was born on 13 April 1931 and enlisted in the Army on 14 April 1948.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty 844 (Cannoneer).  He served in the Asiatic Pacific Theater of Operations during the period 4 August 1948 through 4 January 1949.

4.  Item 32 (Battles and Campaigns) of his WD AGO Form 53-58 shows the entry, “NONE.”  Item 33 (Decorations and Citations) shows he was awarded the Army of Occupation Medal with Japan clasp. 

5.  All the facts and circumstances surrounding the applicant’s separation are not available for review by this Board.  The applicant’s record is void of any details leading up to separation.  

6.  The applicant's WD AGO Form 53-58 shows that he was discharged on 
21 January 1949, under the provisions of Army Regulation 615-369 (Discharge – Inaptitude or Unsuitability), and was issued a General Discharge Certificate.  He had completed 9 months and 8 days of net active service.

7.  A review of the available records fails to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 615-369 (Discharge – Inaptitude or Unsuitability), in effect at the time, provided guidance for the separation of enlisted personnel for unsuitability based on a demonstrated lack of adaptability for military service and required action by a board of officers.  The individual could receive an honorable or general discharge when discharge was recommended under this regulation.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7, 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:

The applicant’s discharge packet is not available for review.  In the absence of evidence to the contrary, it must be presumed that his separation in 1949 was administratively correct and in conformance with applicable regulations.  Based the type of separation, it is presumed the applicant demonstrated lack of adaptability for military service.  As a result, the commander determined the applicant's service was insufficiently meritorious to warrant a fully honorable characterization of service and granted a General Discharge under honorable conditions.    

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)                                         AR20100012829





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012829



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2005 | 20050018096C070206

    Original file (20050018096C070206.doc) Auto-classification: Denied

    Records show the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should...

  • ARMY | BCMR | CY2014 | 20140000136

    Original file (20140000136.txt) Auto-classification: Approved

    The applicant, the daughter of a former service member (FSM), requests, in effect, that the FSM's general discharge be upgraded to honorable. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. Therefore, there is insufficient evidence to upgrade his discharge to an honorable discharge.

  • ARMY | BCMR | CY2008 | 20080013340

    Original file (20080013340.txt) Auto-classification: Denied

    The applicant requests that his general discharge be upgraded to an honorable discharge. The applicant provides the following additional documentary evidence in support of his application: a. WD AGO Form 53-58 (Enlisted Record and Report of Separation, General Discharge), dated 28 June 1948. b. However, the applicant’s WD AGO Form 53-58 shows he was separated on 28 June 1948 in accordance with Army Regulation 615-368 (Undesirable Habits or Traits of Character Discharge), by reason of...

  • ARMY | BCMR | CY2007 | 20070007406C071029

    Original file (20070007406C071029.doc) Auto-classification: Denied

    The applicant’s military records are not available to the Board for review. Discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under the provisions of Army Regulation 615-369) could be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted. In the absence of evidence to the contrary it is presumed that the discharge proceedings were...

  • ARMY | BCMR | CY2011 | 20110002928

    Original file (20110002928.txt) Auto-classification: Denied

    He goes on to state that a board was convened but he was not present for the board and a corporal who attended the board told him that the board recommended that he receive an honorable discharge. However, his WD AGO Form 53-58 which was authenticated by the applicant shows that on 17 October 1947 he was discharged under the provisions of Army Regulation 615-369 with a general discharge, and he was still in basic training. There is no evidence in the available records to show that the...

  • ARMY | BCMR | CY2001 | 2001058975C070421

    Original file (2001058975C070421.rtf) Auto-classification: Denied

    In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice. The applicant requests...

  • ARMY | BCMR | CY2011 | 20110009982

    Original file (20110009982.txt) Auto-classification: Denied

    The applicant's military records are not available to the Board for review. However, his WD AGO Form 53-59 shows he was discharged on 20 October 1949 under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) with an undesirable discharge. It is also presumed the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record of service during the period under review.

  • ARMY | BCMR | CY2012 | 20120009796

    Original file (20120009796.txt) Auto-classification: Denied

    On 11 August 1949, the applicant appeared before a board of officers to determine if he should be discharged under the provisions of Army Regulation 615-368 for unfitness, repeated contraction of a venereal disease. His WD AGO Form 53-59 shows he was discharged from active duty on 3 November 1949, under the provisions of Army Regulation 615-368, by reason of unfitness - unclean habits including repeated venereal disease with an undesirable discharge. On 13 June 1956, he was discharged from...

  • ARMY | BCMR | CY2009 | 20090000716

    Original file (20090000716.txt) Auto-classification: Denied

    The applicant requests, in effect, that his record be corrected to show he accrued a total of 3 days of time lost and not 22 days as is indicated. The record shows the ADRB reviewed the applicant's case on 19 March 1952, and after careful consideration of the evidence of record and independent evidence submitted by the applicant, determined he was properly discharged and voted to deny the applicant's request for an upgrade of his discharge. Therefore, absent any evidence of record or...

  • ARMY | BCMR | CY2013 | 20130013413

    Original file (20130013413.txt) Auto-classification: Denied

    The applicant requests an upgrade of his general discharge to an honorable discharge. The applicant's complete military records are not available to the Board for review. Army Regulation 635-200, in effect at the time, stated an honorable discharge was a separation with honor.