IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016479 


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. 

2.  The applicant states:

   a.  His discharge should be upgraded, due to circumstances beyond his control.  He joined the Army during the Korean War to serve his country.  He served in Korea 1 year and was transferred to Japan.  By the time he was transferred back to Fort Lewis, WA, he had not had a furlough in over a year and his commander insisted that he take leave.
   
   b.  In the dead of winter he hitchhiked back to Chicago, he did not have any money, and he hooked up with the wrong crowd.  As a result, he was imprisoned for robbery.  Had his captain not sent him on leave he would not have gotten into trouble.

3.  The applicant did not provide any evidence.

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 his 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 case is being considered using a reconstructed record, which primarily consists of his GSA Form 6954 (Certification of Military Service).

3.  The applicant's GSA Form 6954 shows he served on active duty from 4 August 1952 to 4 June 1956.  He was discharged on 4 June 1956 in the rank of specialist third class with an undesirable discharge.

4.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his reconstructed records contain several DA Forms 1 (Morning Report) that show he was assigned to the 2nd Quartermaster Company, 2nd Infantry Division, Sixth Army, Fort Lewis, WA. These forms also show:

	a.  On 20 January 1956, his duty status was changed from ordinary leave to absent without leave (AWOL).

	b.  On 18 February 1956, his status was changed from AWOL to dropped from Army rolls (DFR) after having been AWOL since 20 January 1956.

	c.  On 18 June 1956, his status was changed from confined in the hands of civil authorities, Cook County Sherriff's Police District, Chicago, IL, to discharged under the provisions of paragraph 24a, Section IV, Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion).

5.  On 15 December 1975, the ABCMR denied his request for an upgrade of his discharge.

6.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

7.  Army Regulation 635-200 (Personnel Separations) provides the policies and procedures for the separation of enlisted personnel.  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.

8.  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 record is void of the facts and circumstances that led to his discharge.  However, his record contains various Morning Reports that confirm he was reported in an AWOL and DFR status before he was apprehended by civil authorities.  He was ultimately discharged on 4 June 1956 under the provisions Army Regulation 635-206 by reason of civil conviction.

2.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to grant the applicant 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)                                         AR20110016479



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ABCMR Record of Proceedings (cont)                                         AR20110016479



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