IN THE CASE OF:	  

		BOARD DATE:	    7 June 2011

		DOCKET NUMBER:  AR20100028163 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states he was 16 years old when he enlisted.  He was young and he could not adjust to the service.  He joined the Army in peacetime and then the Korean War broke out and it literally scared him to death.  He claims he has suffered enough with his bad discharge.

3.  The applicant provides:

* His DD Form 214 (Report of Separation from the Armed Forces of the United States)
* Three character reference letters

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 his 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.  This case is being considered using a reconstructed record, which primarily consists of his DD Form 214.

3.  The applicant was previously advised on two separate occasions that due to the lack of sufficient records, the Board could not make a decision on his application.  He was also informed that since sufficient records to determine exactly what occurred in his case could not be located, it was impossible for the Board to make a fair, impartial, and equitable determination.

4.  The North Koreans invaded South Korea on 25 June 1950.  On 27 June 1950, the President ordered American armed forces to aid the South Korean regime.

5.  The applicant's DD Form 214 shows he was born on 15 December 1930 and he enlisted in the Regular Army on 25 July 1950 for a period of 3 years in the rank/grade of recruit.  Based on his date of birth and date of entry into active service he was 19 years, 7 months, and 11 days of age when he entered into active service.

6.  His DD Form 214 also shows that at the time of his separation he held military occupational specialty 4602 (Anti-Aircraft Artillery (AAA) Automatic Weapons Crewman) and he was assigned to D Battery, 46th AAA Battalion.

7.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 14 August 1952 under the provisions of Army Regulation 615-368 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge), for unfitness, in pay grade E-1.  He was furnished an Undesirable Discharge Certificate.  He completed 1 year, 10 months, and 13 days of active service during this period of enlistment.  Item 38 (Remarks) of the DD Form 214 shows the entry, "67 days lost under Sec 6a App MCM 1951."

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

9.  He submitted three character reference letters, dated 27 October 2010,
29 October 2010, and 5 November 2010, respectively, from three individuals who comment on the applicant's compassion, family values, involvement in the church, and support of his community.

10.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of undesirable habits of character manifested by misconduct.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

11.  Army Regulation 635-200, currently in effect, governs the policies and procedures for 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.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s available record is void of the complete facts and circumstances concerning the events that led to his discharge from the Army.  However, his record contains a copy of his DD Form 214 which shows he was discharged on 14 August 1952 with an undesirable discharge.  This document listed the authority for his separation as Army Regulation 615-368.

2.  The evidence of record shows the applicant was nearly 20 years old at the time of his enlistment in July 1950, one month after the Korean War started, and nearly 22 years old at the time of his discharge.  There is no evidence to show he was only 16 years old at the time he enlisted, during wartime, and no evidence to show he raised his underage status at any time.  In addition, there is no evidence that he was any less mature than other Soldiers who successfully completed their military service.


3.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations 
applicable at the time and there is no indication of procedural errors that would tend to jeopardize his rights.  Additionally, it must also be presumed that the character of the discharge is commensurate with the applicant's overall record of military service.

4.  Based on the available records, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge to either an honorable or a general 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 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)                                         AR20100028163



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ABCMR Record of Proceedings (cont)                                         AR20100028163



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