IN THE CASE OF:	  

		BOARD DATE:	 16 June 2011 

		DOCKET NUMBER:  AR20100028162 


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 honorable.

2.  The applicant states he served his country honorably during the Korean War.  In 1955, he was honorably discharged and immediately reenlisted for duty in Germany.  He was later discharged as undesirable over five pounds of coffee missing from the mess.  He believes it is unfair to take away his benefits over some missing coffee grounds.  He finds it hard to believe that benefits such as medical care are denied him as a combat veteran.

3.  The applicant provides copies of his National Archives and Records Administration (NA) Form 13038 (Certification of Military Service) for the period 11 August 1955 to 13 June 1956 and six pages from his medical and dental service records.

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 complete 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.  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 (Report of Separation from the Armed Forces of the United States) for the period ending 10 August 1955 is not available for review.  The National Archives and Records Administration issued an NA Form 13038, dated 15 March 2005, indicating the applicant was a member of the Enlisted Reserve Corps from 20 October 1953 to 10 August 1955 and he was discharged with an honorable characterization of service.

4.  The applicant's DD Form 214 for the period 11 August 1955 to 13 June 1956 is available for review.  It shows:

	a.  he enlisted in the Regular Army for a period of 6 years while in Germany;

	b.  his most significant duty assignment was with Battery C, 552nd Anti-Aircraft Artillery Battalion;

	c.  he had 57 days of lost time;

	d.  he was separated from the service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character) for habits and traits that rendered him unfit for retention in the service;

	e.  he was given a separation program number of 78 (Habits and Traits);

	f.  he completed 8 months and 7 days of creditable active duty service during this period; and

	g.  his characterization of service was recorded as undesirable.

5.  The discharge packet is unavailable for review.

6.  There is no evidence the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

7.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for undesirable habits and traits.  The regulation provided for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminal act(s), drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when in the judgment of the commander it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9, provides that the Board 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 contends that his undesirable discharge should be upgraded to honorable because it was unfair.

2.  There is no documentary evidence showing the reasons for the applicant's undesirable discharge.  However, he did accrue almost 2 months of lost time.

3.  There is no available evidence that documents the applicant's quality of service during the period from 1953 to his reenlistment in 1955 other than the NA Form 13038 issued in 2005 showing he received an honorable discharge.

4.  In the absence of evidence to the contrary, it is presumed the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20100028162



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028162



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1