BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100019783 


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 (UD) be upgraded to a general discharge (GD).  

2.  The applicant states he served honorably in the Korean War, he was on the front lines, and he was awarded several medals.  His problem was when he was stationed at Fort Knox, Kentucky.  He would go home on the weekend and would forget to go back because he was in love.  The Sunday before he was to be discharged charges were preferred against him for being disrespectful to a superior commissioned officer by not saluting him.  He was given the option of fighting the charges, which people encouraged him to do, or get out of the military.  He was in love; therefore, he decided to get out of the military.

3.  The applicant does not provide any documents in support of his application.  

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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's Report of Separation from the Armed Forces of The United States (DD Form 214).  

3.  The applicant's DD Form 214 shows he was inducted into the Army of the United States and entered active duty on 24 September 1952.  This separation document also shows that during his active duty tenure he earned the Combat Infantryman Badge, the Korean Service Medal with one bronze service star, the National Defense Service Medal, and the United Nations Service Medal.  

4.  The applicant's DD Form 214 also shows he was discharged under the provisions of Army Regulation 615-368 on 10 June 1955, with an undesirable discharge, after completing 1 year, 7 months, and 26 days of active military service with 386 days of time lost.  

5.  Army Regulation 615-368 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character), in effect at the time of the applicant's separation from active duty, provided policy and guidance in the elimination from the service of enlisted personnel having undesirable habits and traits of character.  This document states that when an enlisted man gives evidence of habits or traits of character which serve to render his retention in the service undesirable, and his rehabilitation is considered impossible after repeated attempts to accomplish same have failed, his company or detachment commander will report the facts to the commanding officer.

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  


7.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention was carefully considered; however, there is no evidence and the applicant did not provide evidence or a convincing argument which would support upgrading his discharge.

2.  The evidence of record shows that the applicant served on active duty from
24 September 1952 through 10 June 1955 and he was discharged under the provisions of Army Regulation 615-368 for undesirable habits and traits of character with an undesirable discharge.

3.  There is no evidence of record and the applicant provides insufficient evidence to show that the discharge he received was in error or unjust.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 615-368, which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  In the absence of evidence to the contrary, it appears the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant is not entitled to an upgrade of his discharge.




5.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100019783



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ABCMR Record of Proceedings (cont)                                         AR20100019783



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