IN THE CASE OF:
BOARD DATE: 23 May 2012
DOCKET NUMBER: AR20110022565
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 upgrade of his undesirable discharge to a general discharge.
2. He states hes submitting this request for burial benefits.
3. He provides a self-authored statement, Certification of Military Service, and WD AGO Form 53-59 (Enlisted Record and Report of Separation Undesirable Discharge).
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 applicants 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 applicants 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.
3. His WD AGO Form 53-59 shows he enlisted in the Regular Army on 6 January 1949.
4. The applicant's discharge packet is not available. However, the available records contain an endorsement which indicated he fraudulently enlisted on 6 January 1949 by concealing his marriage and dependents. The available records contain a sworn statement from the applicant indicating he didnt report he was married because he was separated from his wife at that time. He stated an annulment of their marriage was filed on 15 July 1948 with the State of New Jersey, County of Essex Court. He believed this annulment would be approved in a short time and his wife didnt need him for support. He thought everything would be cleared up and he would be single again.
5. He was discharged with an undesirable discharge on 8 August 1949 under the provisions of Army Regulation 615-366 (Enlisted Personnel Discharge). He completed 3 months and 13 days continental service and 3 months and 21 days foreign service.
6. His available records do not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.
7. He provided a self-authored statement attesting he was discharged due to errors in his date of birth and the Army stated he enlisted too young. He stated he had an ex-wife who made trouble for him which was later shown to be without foundation and he wants to be buried in a local military cemetery.
8. Army Regulation 615-366, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct due to fraudulent entry, conviction by civil court, absence without leave, and desertion. The regulation provided that members guilty of the above misconduct were subject to separation. An undesirable discharge was normally directed.
9. Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 3-7, 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 request for upgrade of his undesirable discharge to general for burial benefits is acknowledged. However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veteran's benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.
2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.
3. The available evidence clearly shows that the applicant fraudulently enlisted by concealing his marriage and dependents. This misconduct renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his undesirable discharge to general.
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) AR20110022565
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110022565
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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