BOARD DATE:    25 October 2011

		DOCKET NUMBER:  AR20110008468 


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 reconsideration of his earlier request for an upgrade of his discharge.  He also requests a personal appearance hearing.

2.  The applicant states he would like to meet with the Board and he would bring witnesses if allowed.

3.  The applicant provides a letter of support from:

* a former Soldier with knowledge of the incident 
* an acquaintance

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100014936, on 18 November 2010.

2.  The applicant submits two letters of support which were not previously considered by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The previous ABCMR Record of Proceedings noted:

	a.  The applicant's military records are not available 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 to conduct a fair and impartial review of this case.

	b.  The applicant enlisted in the Regular Army in Columbus, OH, on 15 June 1956 for a period of 3 years.  He completed his training in military occupational specialty (MOS) 11B as a light weapons infantryman.

	c.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his DD Form 214 (Report of Transfer or Discharge) shows he was discharged on 10 December 1958 under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) with an undesirable discharge by reason of unfitness due to undesirable habits or traits of character manifested by misconduct.  He had served 2 years, 5 months, and 26 days of total active service.  He completed 1 year, 4 months and 23 days of foreign service.

	d.  There is no evidence in the available records to show he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's statute of limitations.

	e.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of undesirable habits or traits of character manifested by misconduct.  An undesirable discharge was normally considered appropriate.

4.  In support of his request for reconsideration he provides copies of letters.

	a.  R----- A. D--- states he was friends with the applicant and was stationed with him at Fort Benning, GA.  He and the applicant were drinking all evening when the incident occurred.  They went to the barracks to go to bed.  The applicant told him the next day that another Soldier had asked him [the applicant] to cover for him if anything came up concerning the other Soldier’s car.  He told the applicant that it wasn’t the right thing to do.  He told the applicant he would testify at his hearing, but was told not to worry about it, so he just kept quiet.  The applicant was discharged and it was too late for him to help.  The other Soldier did not come forward.  He is sure that the applicant never had a key to the other Soldier's car.

	b.  E---- L. H----- states he has known the applicant since 1968.  The applicant has been of high moral character and a good friend.  He has been privileged to have known the applicant.

5.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  It states in:

	a.  paragraph 2-2c, "The ABCMR will decide cases on the evidence of record. It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions."

	b.  paragraph 2-9, "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 contends his discharge should be upgraded and he now requests a personal appearance hearing.

2.  The applicant's contentions and new supporting evidence have been noted; however, they are not sufficient to overcome the basis for his discharge when compared to his undistinguished record of service.  Therefore, absent sufficient evidence to show otherwise, there appears to be no basis to upgrade his discharge.

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 with no violations or procedural errors which would tend to jeopardize his rights.  Accordingly, it must also be presumed that the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

4.  The applicant's request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  Because there is no evidence of record, it appears the primary evidence the applicant could provide in a personal appearance hearing would be recollections from more than 50 years ago.  Therefore, a personal appearance hearing is not warranted.


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 to amend the decision of the ABCMR set forth in Docket Number AR20100014936, dated 18 November 2010.



      _________ 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)                                         AR20100026592



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ABCMR Record of Proceedings (cont)                                         AR20110008468



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