IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100022030 


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.

2.  He states he was not given any opportunity for counseling or treatment for alcoholism, which was the problem he had while in the Army.  Since the time of his discharge, he has been an upstanding citizen.

3.  He provides:

* general orders for award of the Bronze Star Medal (BSM) with "V" Device
* his DD Form 214 (Report of Separation from the Armed Forces of the United States)
* a self-authored letter
* four character reference letters
* a newspaper article
* photographs
* a certified criminal record search

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.  His military personnel records were lost or destroyed in a fire at the National Personnel Records Center in 1973.  The records available to the ABCMR were provided in part by the applicant and from reconstructed records.  There were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  His DD Form 214 shows he enlisted in the Regular Army on 21 January 1952.  This document further shows he completed 1 year, 9 months, and 5 days of foreign service and that he earned the following awards during his active duty tenure:  BSM with "V" Device, Korean Service Medal with two bronze service stars, United Nations Service Medal, National Defense Service Medal, and Combat Infantryman Badge.

4.  He provides General Orders Number 663 issued by 7th Infantry Division on 25 September 1953.  These orders show he was awarded the BSM with "V" Device on 24 July 1953 while assigned to Company K, 31st Infantry Regiment.  It states, in part, he heard a wounded comrade's call for aid and immediately went for assistance and led the party into hostile territory to the wounded man.  Although enemy mortar and artillery rounds were landing in the areas, he and his comrades succeeded in taking the casualty to the safety of the friendly line.  His quick thinking and disregard for his own personal safety was outstanding and a definite factor in saving his comrade's life.

5.  His DD Form 214 also shows he was separated under the provisions of Army Regulation 615-368 (Undesirable Habits or Traits of Character – Enlisted Men – Discharge) by reason of unfitness on 21 February 1955.  At the time, he held the rank of private/E-1 and had completed 2 years, 6 months, and 26 days of creditable active military service.  This document also shows he accrued 189 days of lost time under section 6(a), appendix 2b, Manual for Courts-Martial, United States, dated 1951.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  He provides a self-authored letter in which he describes how his drinking affected his mind.  He describes events that took place while in Korea at the Noncommissioned Officers Club and after he returned to the United States.  He states he had a brother who was killed in Korea in 1950 and at the time he did not think he would live to be 21 years old.  He has been sober for more than 50 years.

8.  He also provides four character reference letters.  The letters range in date from 21 March 1996 through 12 August 2010.

	a.  His former employer expressed his sincere gratitude for his outstanding job performance and for being an outstanding employee.  He also noted the applicant's perfect attendance beginning in 1955 through 21 March 1996.

	b.  His daughter described her mother as a stay-at-home housewife and her father as a man who worked hard to keep a roof over their heads during her years as a child.  Eight years ago, her mother was diagnosed with Alzheimer's disease and requires constant care so she moved back home to help care for her.  Her father is in pretty good health and has not drunk or smoked for more than 40 years.  He is a trustworthy man who she has always felt safe with because he had always been there for his family.

	c.  His pastor states he has known the applicant for a number of years and he is a hard-working man of high character who is highly respected by his neighbors.  For the past 8 years, along with the help of his son and daughter, he has taken care of his invalid wife instead of placing her in a nursing home.  He has become a Christian who faithfully attends church.  The pastor believes the applicant deserves to have his discharge upgraded.

	d.  His life-long friend describes their relationship from childhood and the applicant as a friendly and outgoing person of superior character.  He states the two of them joined the Army together at 18 years of age in hopes to avenge the death of the applicant's brother who was killed in action in Korea during the early stages of the war.  He contends the applicant served honorably during his time in the service and was promoted to the rank of sergeant first class/E-6.  However, due to traumatic combat experiences, the applicant's personality and demeanor changed drastically, which drove him to abuse alcohol.  Since the time of his discharge, he has taken control of his life.  He worked for Burlington Industries for more than 40 years before retiring, is the caretaker for his wife of more than 50 years, and continues to be a good provider and role model for his family.  He deserves an upgrade of his discharge.

9.  He provides a newspaper article [date not known] which shows Soldiers assigned to the 7th Infantry Division in Korea were engaged in battle against the Communist Chinese Army.  Although the enemy was advancing, the 7th Infantry Division hammered back before the enemy was able to reach its objective.

10.  He also provides photographs of himself serving in Korea and a certified copy of the State of North Carolina Criminal Record Search.  The record search shows he had no criminal charges against him from the year 1985 to the present date.

11.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the separation of personnel for the following reasons:  (1) evidence of habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct; (2) unclean habits; (3) repeatedly committed petty offenses not warranting trial by court-martial; (4) habitual shirker; or (5) recommended for discharge by a board of medical examiners.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  He is commended on his bravery and display of valor in which he risked his own life to save the life of a fellow comrade.  His post-service conduct and accomplishments are also duly noted.

2.  However, in the absence of evidence to the contrary, there is a presumption of regularity that what the Army did was correct.  As such, even though his records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations in place at that time.

3.  His record contains a properly-constituted DD Form 214 that identifies the reason and characterization of the discharge.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were protected throughout the separation process.  Further, his DD Form 214 clearly shows he accrued 189 days of lost time.  As a result, it appears the UD he received was appropriate.

4.  He has not provided sufficiently mitigating evidence or a convincing argument to warrant upgrading his UD.  In view of the foregoing, he is not entitled to the requested relief.

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 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)                                         AR20100022030



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ABCMR Record of Proceedings (cont)                                         AR20100022030



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