IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110005782 


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 an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he had a misunderstanding with his commanding officer and he did not willfully do anything to warrant an undesirable discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).

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, and 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.  It is believed the applicant's records were lost or destroyed in the National Personnel Records Center fire 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 shows he enlisted in the Regular Army and entered active duty in Phoenix, AZ, on 4 November 1948.  He held military occupational specialty 1602 (antiaircraft artillery automatic weapons chief).

4.  The applicant's DD Form 214 shows he was discharged on 29 May 1953 under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness) with an undesirable character of service.

5.  The applicant's DD Form 214 shows:

* 5 years, 9 months, and 25 days of creditable active military service
* 271 days of lost time
* not recommended for further military service
* habits rendering retention in service undesirable

6.  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.

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.  This regulation provided for the discharge of individuals who had demonstrated their unfitness by evidence of habits and traits of character manifested by 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 be either discharged because of unfitness, 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 615-369, in effect at the time, set forth the basic authority for the separation of enlisted personnel for inaptitude or unsuitability.  The regulation also provided that discharge for unsuitability would be effected when it was determined that an individual had demonstrated maladaptability for further military service for character and behavior disorder, mental deficiency, and enuresis.  The regulation also provided that when discharged because of inaptitude or unsuitability, a general discharge would be furnished.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7a states that 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.  Where there have been infractions of discipline, the extent thereof should be considered as well as the seriousness of the offense(s).

11.  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 request that his undesirable discharge be upgraded was carefully considered; however, there is insufficient evidence to grant him the requested relief.

2.  The facts and circumstances of his discharge are not available for review with this case.  However, the applicant's DD Form 214 confirms that he was discharged under the provisions of Army Regulation 615-268 with an undesirable character of service.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations at the time with no procedural errors which would tend to jeopardize his rights.  It is also presumed that the separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review.




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)                                         AR20110005782



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ABCMR Record of Proceedings (cont)                                         AR20110005782



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