IN THE CASE OF:	  

		BOARD DATE:	  14 DECEMBER 2010

		DOCKET NUMBER:  AR20100016129 


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 his undesirable discharge be upgraded to honorable.  He also requests item 47 (Permanent Address for Mailing Purposes after Separation) of his DD Form 214 (Report of Separation from the Armed Forces of the United States) be amended.

2.  The applicant states, in effect, his record of service is honorable and he received service medals and awards.  He contends he received his DD Form 214 2 years and 5 months after his expiration term of service (ETS).  He points out he enlisted on 9 January 1948 for a period of 3 years and his ETS was 9 January 1951.  When he returned from Korea, 4 months and a few days past his ETS, he arrived at Fort Leonard Wood with orders for discharge.  After waiting 4 weeks for his discharge, his commander told him his enlistment was over, he was a civilian, and to go home and come back in a week to pick up his discharge.  He returned a week later and the company commander ordered a court-martial and charged him for being absent without leave (AWOL).  He was sentenced to 6 months in the stockade.  He claims he was in the stockade for approximately 3 weeks and the post commander released him and told him he would receive his discharge in the mail.  That was in June 1951 and he received his discharge in May 1953.

3.  The applicant also states he was a civilian and was not in the military and his discharge was a violation of military law and his civil rights as an American.  He indicates he was arrested by civil authorities and pled guilty in the Circuit Court of the State of Missouri on 4 March 1953.  He has never violated any law or been arrested since 1953.  He also wants an explanation for the lost time and total net service for pay purposes shown on his DD Form 214.

4.  The applicant provides:

* DD Form 214
* Veterans Administration Certificate of Eligibility
* Twenty-Second Judicial Circuit of Missouri document
* letters from the National Personnel Records Center in St. Louis, MO, dated 26 March 2010 and 25 July 2002, 

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 the applicant's 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 and impartial review of this case.

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army on 9 January 1948 and served in Korea.

4.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, the applicant provided a court document which shows he pled guilty to robbery (first degree) and was sentenced to 5 years in a state prison.

5.  The applicant's DD Form 214 shows he was separated with an undesirable discharge on 15 May 1953 under the provisions of Army Regulation 615-366 (Enlisted Men – Discharge – Misconduct) for conviction by civil court.  Item 22 (Net Service Completed for Pay Purposes This Period) and item 24 (Total Net Service Completed for Pay Purposes) of his DD Form 214 show the entries "3  9  0" [3 years and 9 months].  Item 38 (Remarks) of his DD Form 214 shows he had 1 year, 7 months, and 7 days of lost time.  Item 47 of his DD Form 214 shows the entry "State Penitentiary Jefferson City MO."

6.  Army Regulation 615-366, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct due to fraudulent entry, absence without leave, desertion, and conviction by civil court.  Section IV (Conviction by Civil Court), paragraph 15a, provided that discharge authorities would discharge individuals who, during their term of service, were convicted by a civil court for a criminal offense or adjudged a youthful offender and sentenced to death or imprisonment for a term exceeding 1 year.  The regulation also provided that an individual discharged due to conviction by civil court or having been adjudged a youthful offender would be furnished an undesirable discharge certificate.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) is the current regulation governing the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant was separated due to a civil conviction for robbery (first degree).  In the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service and in accordance with the governing regulation.  As a result, there is no basis for granting the applicant's request for an honorable discharge.

2.  The applicant requests item 47 of his DD Form 214 be amended and he wants an explanation for the lost time and total net service for pay purposes shown on his DD Form 214.  However, without having his service personnel records to consider or evidence to the contrary, it is presumed these items on his DD Form 214 are correct.



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)                                         AR20100016129



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ABCMR Record of Proceedings (cont)                                         AR20100016129



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