BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009982 


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, through a Member of Congress, an upgrade of his undesirable discharge.

2.  The applicant states:

   a.  He was discharged without the benefit of counsel, court-martial, or administrative board and at that time was unaware of what was happening to him.
   
   b.  While assigned for duty in Germany and having been notified his father was sick on his deathbed, due to a long process he arrived home two weeks after his father had been laid to rest.
   
   c.  Upon his return to Camp Kilmer, New Jersey, he was held over for several months and placed on details and not allowed to return to Germany.
   
   d.  He was not only devastated by his father's death, but also for being used as a cleanup man performing kitchen police duties where he was mistaken by everyone as a cook instead of being allowed to return to his unit.
   
   e.  He is now 83 years old and asks for allowance to die an honorable veteran.
   
3.  The applicant provides:

* Information Paper
* Congressional Letter
* DD Form 293 (Application for Review of Discharge from the United States)
* National Archives (NA) Form 13078 (Certification of Military Service)
* WD AGO Form 53-59 (Enlisted Record and Report of Separation - UD)
* UD Certificate

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.  This applicant's WD AGO Form 53-59 is the primary document used in this case.

3.  His WD AGO Form 53-59 shows he enlisted in the Regular Army for 2 years on 12 October 1948.  This form also shows at the time of his discharge, he held military occupational specialty 345 (Auto Equipment Operator).

4.  His WD AGO Form 53-59 further shows he completed 1 year and 3 days of creditable active military service, of which 2 months and 25 days was foreign service.

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his WD AGO Form 53-59 shows he was discharged on 20 October 1949 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 6 days of lost time.
6.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.

	a.  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.

	b.  That regulation 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.

7.  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.  His WD AGO Form 53-59 shows he was discharged on 20 October 1949 under the provisions of Army Regulation 615-368 with an undesirable discharge.  This form also shows he had 6 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.  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)                                         AR20110009982





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ABCMR Record of Proceedings (cont)                                         AR20110009982



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