IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110006287 


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, the widow of a former service member (FSM), requests an upgrade of the FSM's undesirable discharge.

2.  The applicant states the FSM's discharge should be upgraded because his records were burned at the National Personnel Records Center and, as a result, there are no available records to substantiate the validity of his discharge.  She states the FSM hit a sergeant because he disagreed with him.  However, the FSM fought for America's freedom and his discharge should be upgraded.

3.  The applicant provides copies of the FSM's birth certificate, their marriage license, and the FSM's death certificate that show the FSM was born on
24 November 1930, they were married on 19 December 1955, and the FSM died on 30 August 1988.

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 FSM's military service 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 FSM's records were lost or destroyed in that fire.  However, there were sufficient available documents for the Board to conduct a fair and impartial review of this case.

3.  A slightly burned WD AGO Form 53-59 (Enlisted Record and Report of Separation - Undesirable Discharge) shows the FSM enlisted in the Army on     10 December 1948 and he was separated with an undesirable discharge on     12 December 1949.  It shows in:

   a.  item 6 (Organization):  Company C, 14th Armored Cavalry;

   b.  item 30 (Military Occupational Specialty and Number):  Armored Reconnaissance Crewman - 4733;

	c.  item 31 (Military Qualification and Date):  M1 Marksman - February 1949;

	d.  item 32 (Battles and Campaigns):  None;

	e.  item 33 (Decorations and Citations):  None;

	f.  item 34 (Wounds Received in Action):  None;

	g.  item 36 (Service Outside Continental U.S. and Return):  Europe from
22 April to 27 November 1949;

   h.  item 37 (Total Length of Service):  4 months and 8 days of continental service and 7 months and 25 days of foreign service;

   i.  item 40 (Reason and Authority for Separation:  Army Regulation 615-368 [Enlisted Personnel - Discharge - Unfitness];

   j.  item 56 (Signature of Person Being Separated):  the FSM's signature; and

   k.  item 57 (Personnel Officer):  the signature of Captain Sxxx E. Bxxx, Women's Army Corps.

4.  The reverse side of the slightly burned WD AGO Form 53-59 (Undesirable Discharge Certificate) shows the FSM was discharged in the rank of private (E-1) on 12 December 1949 as undesirable.  The certificate was signed by Major Axxxxx J. Cxxxxxx, Transportation Corps.

5.  There is no evidence the FSM applied to the Army Discharge Review Board (ADRB) for a review of his discharge within its 15-year statute of limitations.

6.  A National Archives (NA) Form 13038 (Certification of Military Service) shows the FSM was a member of the Army from 10 December 1948 to 12 December 1949 and his service was terminated by undesirable discharge.  The last rank he held was private [E-1].  The certificate was issued on 23 April 1986 and shows the official seal of the National Personnel Records Center, Military Personnel Records, National Archives and Records Administration, St. Louis, MO.

7.  On 5 May 1986, the FSM requested an upgrade of his discharge.  He wrote,
"I got two court-marcal [sic] I didn't deserve.  It was unjust because the other man lie [sic] and got away with it."

8.  On 9 February 1987, the ABCMR (Docket Number AC86-05327) advised the FSM that "[s]ince your records are not available and since your application does not contain enough information to allow the Board to make a determination, the Board cannot take any further action at this time.  This does not mean that your application has been denied or that you may not file again.  You may reapply at any time if you can submit the necessary supporting documents and/or information."

9.  The applicant submitted requests for an upgrade of the FSM's discharge to the ABCMR on 24 October 1988, 25 July 1991, and 6 March 2010.  On those occasions, the ABCMR provided the applicant the same information that was provided the FSM on 9 February 1987.

10.  Army Regulation 615-368, in effect at the time of the FSM's discharge, set forth the policy and procedures for the separation of enlisted personnel for unfitness when an individual demonstrated that he is totally unfit for further retention in military service and his rehabilitation is considered impossible after repeated rehabilitative attempts have failed or are impracticable.  It shows:

   a.  A board of officers, convened by the commander exercising general court-martial jurisdiction, will make a recommendation with respect to the enlisted man's discharge.

   b.  The board proceedings will be closely examined by the convening authority and a determination made as to the propriety of action recommended.

   c.  The convening authority will take such action on the board's recommendation as he may deem necessary.

   d.  An undesirable discharge was authorized for unfitness.

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

   a.  Chapter 3, 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.  Chapter 3, 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.  

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR 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's contention that the FSM's discharge should be upgraded because his records were burned at the National Personnel Records Center and there are no available records to substantiate the validity of his discharge was carefully considered.  However, the available evidence:



   a.  Shows the FSM acknowledged being court-martialed on two occasions.

   b.  In the form of an undesirable discharge document shows the FSM was discharged from the Army under the provisions of Army Regulation 615-368 for unfitness on 12 December 1949.  The available evidence also shows:

       (1)  Two Army commissioned officers authenticated the authority, reason, and character of service on the FSM's discharge document.

       (2)  The FSM acknowledged he was aware of the character of service by placing his signature on the discharge document.

2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 615-368, which provides the separation processing procedures and guidance in determining the character of service for individual's discharged for unfitness.  The applicant has failed to provide evidence to overcome that presumption.

3.  In the absence of evidence to the contrary, the presumption is the FSM was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the FSM were fully protected throughout the separation process.

4.  In view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110006287



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006287



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1