IN THE CASE OF: 

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120009625 


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 that his undesirable discharge be changed to an honorable discharge or a separation by reason of permanent physical disability.

2.  The applicant states he was hospitalized shortly after entering the Army for what the doctors told his father was spinal meningitis and double pneumonia, but he does not remember much.  He states he was transferred overseas and he does not remember much about that either.  He also states he does not believe his medical records were reviewed prior to his discharge and he should have been medically discharged.  He also states that he went to the Department of Veterans Affairs in Webb City, Missouri, to get help finding his medical records and received no assistance.

3.  The applicant provides handwritten letters from himself and his brother.

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 for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 29 January 1948 for a period of 3 years.  He completed training as a cannoneer.  He completed 1 year, 2 months, and 3 days of foreign service.

4.  The facts and circumstances surrounding his administrative discharge are not present in the available records; however, his DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was discharged on 26 May 1950 under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness (Undesirable Habits and Traits of Character)) for unfitness due to traits of character rendering retention in the service as undesirable.  He completed 2 years and 25 days of total active service with 92 days of lost time.

5.  The applicant's medical records are not available for review by the Board and there is no indication that the applicant was deemed medically unfit for retention.

6.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of or change to his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  This regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct.  An undesirable discharge was normally considered appropriate.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate given the limited information contained in the available records.

3.  Given the amount of time lost during a short period of service and the authority and reason for his discharge, there appears to be no basis for granting the applicant's requested relief.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20120009625



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ABCMR Record of Proceedings (cont)                                         AR20120009625



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