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 applicants general discharge under honorable conditions to an honorable discharge.
2. Counsel states the applicants 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 applicants General Discharge Certificate
* A copy of the applicants 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 applicants 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 applicants 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 applicants 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 applicants separation are not available for review by this Board. The applicants 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 applicants 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
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ABCMR Record of Proceedings (cont) AR20100012829
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