IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120008681 


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 other than honorable discharge.

2.  The applicant states he believes his records are incomplete due to a fire in 1973 which destroyed his records that "reflected OTH [other than honorable] discharge with full benefits."

3.  The applicant provides copies of a National Personnel Records Center (NPRC) letter and National Archives and Records Administration (NA) Form 13038 (Certification of Military Service).

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 service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the NPRC in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient available documents for the Board to conduct a fair and impartial review of this case.

3.  A 2128-1 U.S. Army Hospital, The Armored Center, Fort Knox, KY, letter, dated 21 April 1954, to the Commander, Medical Holding Detachment, U.S. Army Hospital, Fort Bragg, NC, reported the applicant's service records had been requested from his former organization (Company G, 61st Infantry Regiment, Fort Jackson, SC), they had not been received, and they would be forwarded upon receipt.

4.  Headquarters, Fort Jackson Personnel Center, Fort Jackson, SC, Special Orders Number 2, dated 4 January 1955, discharged the applicant from the Army effective 5 January 1955 under the provisions of Army Regulation 615-368 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character).

5.  There is no evidence the applicant applied to the Army Discharge Review Board for a review of his discharge within its 15-year statute of limitations.

6.  A General Services Administration Form 6954 (Certification of Military Service) shows the applicant was a member of the Regular Army from 16 November 1953 to 5 January 1955 and his service was terminated by an undesirable discharge.  The last rank he held was private.  The certificate was issued on 24 February 1978.

7.  A letter from the applicant to the NPRC, dated 18 December 2000, shows he requested a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

8.  An NPRC letter to the applicant, dated 17 September 2001, forwarded an NA Form 13038 to the applicant.  The Certification of Military Service shows the applicant was a member of the Regular Army from 16 November 1953 to 5 January 1955 and his service was terminated by an undesirable discharge.  The last rank he held was private.  The certificate was issued on 13 September 2001.

9.  In support of his application, the applicant provides the following documents:

	a.  an NPRC letter, dated 30 March 2009, that forwarded an NA Form 13038 to the applicant; and

	b.  a Certification of Military Service that shows the applicant was a member of the Regular Army from 16 November 1953 to 5 January 1955 and his service was terminated by an other than honorable discharge.  The last rank he held was private.  The certificate was issued on 27 March 2009.

10.  Army Regulation 615-368, in effect at the time of the applicant's separation from active duty, provided policy and guidance in the elimination from the service of enlisted personnel having undesirable habits and traits of character.

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

	a.  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.

	b.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because his records are unavailable to substantiate his entitlement to benefits.

2.  Special orders discharged the applicant on 5 January 1955 under the provisions of Army Regulation 615-368 and the evidence of record shows he was issued an undesirable (under other than honorable conditions) discharge.

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  The evidence provided by the applicant failed to overcome that presumption.

4.  In view of all of the foregoing, there is no basis for granting the applicant's requested relief.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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)                                         AR20120008681



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ABCMR Record of Proceedings (cont)                                         AR20120008681



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