IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120005993 

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, the spouse and designated agent of a former service member (FSM), requests:

* upgrade of her husband's undesirable discharge to an honorable discharge
* change of his narrative reason for separation from misconduct to the Convenience of the Government
* change of his reentry eligibility (RE) code to "1"
* assignment of the corresponding separation program number/designator (SPN/SPD) code

2.  The applicant states the FSM:

* would not have received this type of discharge under current standards
* has been a good citizen since his discharge
* has an exemplary work history and no criminal records
* was impaired by his youth and immaturity
* was subjected to and faced racial discrimination that severely impaired his ability to serve

3.  The applicant provides:

* a self-authored statement from the FSM
* the FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States)


* a National Archives (NA) Form 13038 (Certification of Military Service)
* a letter from the National Personnel Records Center

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 FSM's military records are not available for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request.

3.  The FSM was born on 1 January 1930.  He was called to active duty from the Enlisted Reserve Corps (ERC) in the rank/grade of private (PV1)/E-1 on 19 August 1950 at the age of 20, 7 months, and 19 days.

4.  The FSM's discharge packet is not available for review.  However, his DD Form 214 indicates his service was characterized as undesirable and shows in:

	a.  item 6 (Effective Date of Separation), he was discharged on 27 July 1951;

	b.  item 8 (Reason and Authority for Separation), his separation authority was Army Regulation 615-366 (Enlisted Personnel Discharge), section IV, by reason of misconduct – conviction by civil court and the entry "3rd Ind, Headquarters TIC 17 Jul 51";

	c.  item 22 (Net Service Completed for Pay Purposes This Period), he completed 4 months and 17 days this period; and 

	d.  item 38 (Remarks), he had 202 days of time lost.


5.  The FSM's DD Form 214 he was issued at the time does not include entries for an SPD or an RE code.

6.  The applicant provided a self-authored statement from the FSM that reiterated the contentions on his application.

7.  There is no indication the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 615-366, in effect at the time, set forth the authority for the separation of enlisted personnel of the Army.  Section IV provided policies and procedures for the separation of a member due to a conviction by a civil court.  It stated that the separation authority could order the discharge of members who were initially convicted by a civil court.  An undesirable discharge was normally considered appropriate for members separated under this provision of the regulation.

9.  Special Regulation 615-360-1 (Enlisted Personnel), in effect at the time, provided an outline of procedures to be followed in effecting discharge of enlisted personnel for any cause (except disability) in any type of organization or separation activity, and described the proper method of executing and disposing of various forms, records, and reports required.  Table I listed the various forms of discharge and the reasons and authority for each and indicated the narrative reason under the provisions of Army Regulation 615-366, section IV was misconduct - conviction by a civil court.  This regulation did not provide entries to be made on the DD Form 214 for SPD or RE codes.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  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.

	c.  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 available evidence is void of the specific facts and circumstances surrounding the FSM's discharge processing.  However, it does include a
DD Form 214 that identifies the reason and characterization of the FSM's discharge.  Therefore, Government regularity in the discharge process is presumed.

2.  The available evidence shows the FSM had 202 days of time lost.  This misconduct and lost time renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to general or fully honorable.

3.  The FSM's DD Form 214 shows he was discharged under the provisions of Army Regulation 615-366, section IV, by reason of conviction by a civil court.  This regulation provided for the discharge of a member upon an initial conviction by a civil court.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the FSM were fully protected throughout the separation process.

4.  The applicant contends the FSM would not have received this type of discharge under current standards.  However, the current regulation, Army Regulation 635-200, chapter 14, provides procedures for separating members for misconduct including convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for those members who have been discharged under this chapter.

5.  The FSM's post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.


6.  The applicant contends the FSM’s ability to serve was impaired by his youth and immaturity.  However, his service record is void of evidence which indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

7.  The FSM's available records are void of evidence and the applicant failed to provide sufficient evidence that demonstrates the FSM was the victim of racial discrimination.

8.  The available evidence does not indicate the actions taken in this case were in error or unjust.

9.  Although the applicant requests change of the FSM's DD Form 214 to show an RE-1 code and corresponding SPN/SPD code, the regulation in effect at the time did not provide for such entries on the DD Form 214.

10.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120005993



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ABCMR Record of Proceedings (cont)                                         AR20120005993



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