IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110002340 


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, that his records be corrected to show that he was honorably discharged by reason of physical disability.

2.  The applicant states that he was released from the Army because he was deemed medically unfit for duty.  He further states that he was shot down over Korea and was paralyzed and hospitalized for 1 year by an unretrievable bullet near his spine.  He goes on to state that upon release from the 97th General Hospital in Frankfurt, West Germany he was released from the Army and his DD Form 214 (Report of Separation from the Armed Forces of the United States) reflects an undesirable discharge and it should read that he received an honorable discharge for medical reasons.

3.  The applicant provides a copy of his DD Form 214.

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 for review.  A fire destroyed approximately 18 million service members' records at the NPRC in 1973.  It is believed the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 10 November 1950 for a period of 3 years.  He completed his training as a cook and was transferred to Giessen, West Germany for assignment to the 22d Infantry Regiment.

4.  On 3 July 1952, he was convicted by a special court-martial of being absent without leave (AWOL) from 27 May to 10 June 1952 and for failure to go to his place of duty.  He was sentenced to perform hard labor without confinement for 30 days and a forfeiture of pay.

5.  On 14 October 1952, he was convicted by a summary court-martial of being AWOL from 6 October to 7 October 1952.  He was sentenced to perform hard labor for 15 days.

6.  On 14 January 1953, nonjudicial punishment was imposed against him for being absent from his place of duty.

7.  On 18 January 1953, nonjudicial punishment was imposed against him for being absent from his place of duty.

8.  On 11 February 1953, the applicant’s commander recommended that the applicant be caused to appear before a board of officers to determine if he should be discharged from the service under the provisions of Army Regulation 615-368 for unfitness.  He cited as the basis for his recommendation that the applicant frequently displayed pathological lying, committing petty offenses not warranting trial by court-martial, poor conduct and efficiency, and failure to respond to rehabilitative transfers.

9.  On 1 April 1953, the applicant appeared before a board of officers and after hearing all of the testimony and reviewing all of the evidence the board of officers found that the applicant gave evidence of traits of character which render retention in the service undesirable and recommended that he be discharged from the service under the provisions of Army Regulation 615-368 for unfitness and that he be furnished an Undesirable Discharge Certificate.
10.  The appropriate authority approved the findings and recommendations of the board of officers on 13 May 1953.

11.  Accordingly, he was discharged under other than honorable conditions on 19 June 1953 under the provisions of Army Regulation 615-368 for unfitness due to traits of character rendering retention in the service as undesirable.  He had served 2 years, 4 months, and 7 days of active service and had 93 days of lost time.

12.  A review of the available records shows that the applicant was hospitalized in February 1953 for a period of 7 days with a diagnosis of Ascariasis (a type of ring worm infection).  There is no evidence of the applicant ever having been in Korea or being wounded. 

13.  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.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate even given the limited information contained in the available records.

3.  The applicant’s contentions have been noted and found to lack merit.  His contentions are not supported by either the evidence of record or any evidence provided by the applicant.  There is no evidence to show he served in Korea.  There is no evidence to show he incurred any type of medical condition that warranted physical disability processing.  Accordingly, there appears to be no basis to warrant approval of his request.


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)                                         AR20110002340





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ABCMR Record of Proceedings (cont)                                         AR20110002340



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