IN THE CASE OF:
BOARD DATE: 12 April 2011
DOCKET NUMBER: AR20100025176
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 discharge under other than honorable conditions be upgraded to honorable.
2. The applicant states:
* a Soldier was absent without leave and brought back by platoon members
* his two noncommissioned members struck the Soldier and never said a word to protect his [the applicant's] honor
3. The applicant provides his DD Form 214 (Report of Separation from the Armed Forced of the United States) 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 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 that 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. His DD Form 214 shows he entered active duty on 9 November 1952 and served as a platoon leader.
4. The facts and circumstances surrounding his discharge are not contained in the available records.
5. His DD Form 214 shows he was discharged under other than honorable conditions on 21 October 1953 in the rank of second lieutenant under the provisions of Army Regulation 605-275 (Officers Resignation). He completed a total of 1 year, 9 months, and 4 days of creditable active service.
6. A Veterans Administration Form 3101-1 (Request for Army Information), dated 28 April 1954, states, "Subject officer's separation from service was effected by voluntary resignation under [paragraph] 4, [Army Regulation]
605-275, for the good of the service in lieu of trial by court-martial for violations of Articles of War 121, 127, 128, 133, 134, and 90."
7. 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.
8. Army Regulation 605-275, in effect at the time, stated the right of a military officer to resign his office at pleasure was subject to certain restrictions growing out of his military status. Paragraph 4 (Resignation for Good of Service) provided that an officer whose conduct has rendered him triable by court-martial for an offense punishable by a dismissal, regardless of whether charges have been preferred, or an officer who is under a suspended sentence of dismissal may tender his resignation for the good of the service. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
9. Army Regulation 600-8-24 (Officer Transfers and Discharges) states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer. An officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
It appears the applicant tendered his resignation for the good of the service in lieu of trial by court-martial. In the absence of evidence to the contrary, it must be presumed his 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.
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) AR20100025176
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ABCMR Record of Proceedings (cont) AR20100025176
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