IN THE CASE OF:	  

		BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120006502 


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 to honorable.

2.  A commissioned officer told him his undesirable discharge could be upgraded to honorable.  He completed 6 months of continental service and 1 month and 15 days of foreign service in Akita, Japan.  He is 84 years old and would like his status changed because he served his country during a difficult economic time.  According to his research, many undesirable discharges have been upgraded to general; therefore, he would like his discharge upgraded.  His family is interested in the possibility of holding a military funeral for him; however, they are unaware of his discharge status at this time.

3.  The applicant provides his Undesirable Discharge Certificate and WD AGO 
Form 53-59 (Undesirable Discharge – Under Other than Honorable Conditions).

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 complete 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 WD AGO Form 53-59.

3.  His WD AGO Form 53-59 shows he was born on 4 January 1927, enlisted in the Regular Army on 19 November 1945, and held military occupational specialty 812 (Heavy Weapons Crewman).

4.  The 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 4 May 1949 under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness (Undesirable Habits and Traits of Character)) in the rank of private.  He was furnished an Undesirable Discharge Certificate.  He completed 7 months and 15 days of active service during this period of enlistment.  Item 55 (Remarks) of his WD AGO Form 53-59 shows the entry, "996 days lost under [Articles of War] 107."

5.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.  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.

7.  Army Regulation 615-368, also stated, in part, 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 Men – 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.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the separation of enlisted personnel.  Paragraph 3-7a provides that 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.

9.  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 available record is void of the complete facts and circumstances concerning the events that led to his discharge from the Army.  However, his record contains a copy of his WD AGO Form 53-59 which shows he was discharged on 4 May 1949 with an undesirable discharge.  This document listed the authority for his separation as Army Regulation 615-368.

2.  The evidence of record shows he had a history of misconduct as evidenced by an extensive amount of lost time.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and there is no indication of procedural errors that would tend to jeopardize his rights.  Additionally, it must also be presumed that the character of the discharge is commensurate with the applicant's overall record of military service.

3.  Based on the available records, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge to either an honorable or a general discharge.


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)                                         AR20120006502



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ABCMR Record of Proceedings (cont)                                         AR20120006502



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