IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110001288 


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, in effect, he is now 75 years old.  He believes breaking restriction does not justify the type of discharge received.  He adds that:

	a.  He wanted to go to Korea, but the Army sent him to Germany instead.  After he arrived in Germany he volunteered to go to Korea and he was transferred to the 1st Infantry Division in Korea, but he was told the war was over and the entire division returned home.  They were sent to Fort Riley, KS, and the new commander "came onto them strong."

	b.  When his wife joined him at Fort Riley, he was put on guard duty after Christmas.  He does not remember exactly what happened but he was restricted to the post after he left post to see his wife.  Upon return, he was put in the stockade for 30 days with hard labor.  He was also court-martialed by his new commander.  His morale was gone and he felt unwanted at his court-martial.  They took his pay and all of his Army clothing.  He only had one set of regular clothing.  They gave him a ticket to Ohio and dumped him off at the post gate. 

   c.   He remained married to his wife for the past 56 years.  Their life was tough and challenging after his discharge from the Army.  Nevertheless, they raised five children, two of whom served in the Army.  Additionally, during the Vietnam War he and his wife worked in an ammunition arsenal making ammunition.  He wants justice after all these years. 
3.  The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 9 February 1956.

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 enlisted in the Regular Army for 3 years on 
23 July 1952.  This form also shows at the time of his discharge, he held military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).

4.  His DD Form 214 further shows he completed 3 years, 5 months, and 19 days of creditable active military service, of which 2 years, 4 months, and 16 days was foreign service.  

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 9 February 1956 under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) with an undesirable discharge.  This form also shows he had 19 days of lost time.

6.  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.

7.  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 habits and traits of character manifested by misconduct.  Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct.  An undesirable discharge was normally considered appropriate.

8.  Army Regulation 615-368 also stated that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under Army Regulation 615-369 (Enlisted Personnel - Discharge - Inaptitude or Unsuitability)), without referral to another board, might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted.  As examples, such circumstances would apply where the cause of unfitness had been minor, relative to the length of efficient service or where there had been a definite effort at self control; or where an individual had, during his current period of service, distinguished himself by an act of heroism, which in itself reflected great credit on the individual and the military service.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the separation of enlisted personnel. 

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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 states 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 contention that his discharge should be upgraded and the evidence he provided as well as his available service record, including his service in Germany, was carefully considered.  However, regretfully, there is insufficient evidence to grant him the requested relief.  
2.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 9 February 1956 under the provisions of Army Regulation 615-368 with an undesirable discharge.  This form also shows he had 19 days of lost time.

3.  In the absence of evidence to the contrary, it appears the applicant had a history of misconduct that led his chain of command to recommend his separation.  It is presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  It is also presumed the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record of service during the period under review.  

4.  Based on his available record, his service appears not to have met 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 grant him 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 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)                                         AR20110001288



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ABCMR Record of Proceedings (cont)                                         AR20110001288



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