IN THE CASE OF:
BOARD DATE: 1 May 2012
DOCKET NUMBER: AR20110022338
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 his undesirable discharge be upgraded to honorable.
2. The applicant states:
* he was falsely accused of selling C-rations to local Korean residents during the Korean Conflict
* it was never proven, it was only hearsay
* there is Department of Veterans Affairs documentation that he was innocent
* he is able to receive housing benefits, if he were guilty he would not receive these benefits
* he is disabled (amputee)
3. The applicant provides 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, 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 enlisted in the Regular Army on 13 November 1951 for a period of 3 years. He completed his training and was awarded military occupational specialty 4345 (light vehicle driver). He served in Korea.
3. Records show he received four courts-martial; however, no other information is available.
4. On 21 October 1954, his commanding officer requested a board of officers be convened to determine whether he should be discharged for unfitness.
5. On 4 November 1954, a board of officers convened. The board recommended the applicant's discharge under the provisions of Army Regulation 615-368 (Enlisted Men Discharge Unfitness) for unfitness due to evidence of habits which render retention in the service undesirable and issuance of an undesirable discharge.
6. On 22 November 1954, the separation authority approved the recommendation.
7. On 6 January 1955, he was discharged under the provisions of Army Regulation 615-368 for unfitness. He completed 2 years, 6 months, and 18 days of creditable service with 221 days of lost time.
8. On 16 April 1982, the Army Discharge Review Board denied his request for an honorable discharge.
9. Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. 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. The regulation also provided that when discharged because of unfitness, an undesirable discharge would be furnished.
10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy 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.
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 contentions that he was falsely accused of selling C-rations to local Koreans and it was never proven were noted. However, the details of his courts-martial are unknown. Nevertheless, he was discharged for unfitness, which he amply demonstrated with four courts-martial.
2. His record of service included four courts-martial and 221 days of lost time. As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. There is insufficient evidence to warrant an honorable or a general discharge.
3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20110022338
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ABCMR Record of Proceedings (cont) AR20110022338
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