IN THE CASE OF:
BOARD DATE: 18 November 2010
DOCKET NUMBER: AR20100014936
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 a more favorable discharge.
2. The applicant states that he was dismissed from the service because he took the blame for something he did not do.
3. The applicant provides a statement from a fellow Soldier who was in the service with him and for whom he took the blame, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a list of issues he contends should be considered in upgrading his discharge.
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 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, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.
3. The applicant enlisted in the Regular Army in Columbus, Ohio, on 15 June 1956 for a period of 3 years. He completed his training as a light weapons infantryman.
4. The facts and circumstances surrounding his administrative discharge are not present in the available records. However, his records do contain a duly-constituted DD Form 214 which shows he was discharged under other than honorable conditions on 10 December 1958 under the provisions of Army Regulation 635-208 (Personnel Separations Discharge Unfitness) for unfitness due to undesirable habits or traits of character manifested by misconduct. He had served 2 years, 5 months, and 26 days of total active service. He completed 1 year, 4 months and 23 days of foreign service. His DD Form 214 also shows that he was reduced to pay grade E-1 on 17 November 1958.
5. There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
6. Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of undesirable habits or traits of character manifested by misconduct. An undesirable discharge was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.
2. Accordingly, it must also be presumed that the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.
3. The applicant's contentions and supporting documents have been noted; however, they are not sufficient to overcome the basis for his discharge when compared to his undistinguished record of service. Therefore, absent sufficient evidence to show otherwise, there appears to be no basis to upgrade 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 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) AR20100014936
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ABCMR Record of Proceedings (cont) AR20100014936
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