IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120010193 


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 upgraded.  

2.  He states he went back into the Army in 1954 and was sent to Fort Lewis, Washington but his wife did not want to go there.  They had one son and another on the way when he was transferred to Fort Ord, California but she would not go with him.  He reenlisted for 6 years and subsequently he was sent overseas.  After about 15 months, he was congratulated by a sergeant for being a new dad but the only mail he received from his wife was asking for a divorce.  He returned to the United States in 1957 and he does not know what caused him to "blow it" but pressure got to him so he took off.  He was mad at the world but he does not know why and since 1959, he has dreamed of what would have happened if he had not gone absent without leave (AWOL).  He concludes that when he accepted the discharge, he understood it was a general discharge.  He wanted out of the Army real bad and when he returned to duty in 1958, he was assigned to permanent kitchen police (KP) duties and that was the end for him so he gave up.  He does not want to file for post traumatic stress disorder (PTSD) because he does not want to remember Korea.  He has been a good citizen for 54 years.  

3.  He provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending 25 June 1952
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 16 January 1959
* DD Form 215 (Correction to DD Form 214), dated 6 May 1959
* Honorable Discharge Certificate 
* two Certificates of Military Service 
* two newspaper articles

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 that his records were lost or destroyed in that fire.  This case is being considered based on DD Forms 113 (Military Pay Records) which are included in the available evidence and the documents provided by him.

3.  The available evidence shows the applicant enlisted in the Regular Army and entered active duty on 6 September 1949.  He was honorably discharged on 
25 June 1952.  His DD Form 214 for this period of service shows he was awarded the Korean Service Medal with one bronze service star and the United Nations Service Medal.  

4.  He again enlisted in the Regular Army, on 15 March 1954.  On 5 October 1954, he was honorably discharged for the purpose of immediate reenlistment and on 6 October 1954, he reenlisted for a period of 6 years.  

5.  His available records include DD Forms 113 that show he was AWOL during the period 21 September - 30 December 1957 and that he was convicted by a special court-martial on 4 June 1958.

6.  His record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does contain a properly-constituted DD Form 214 which identifies the authority for his separation.
7.  His DD Form 214 shows he was discharged on 16 January 1959 in the rank/grade of private/E-1, after completing 6 years, 3 months, and 22 days of total creditable active service and that he accrued 484 days of lost time.  It also shows he was separated under the provisions of Army Regulation 635-208 with his service characterized as under other than honorable conditions.

8.  There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  He provided a newspaper article titled "Officer:  Military could learn from civilian courts" which essentially provides the story of an Army Soldier who received a bad conduct discharge for being AWOL but the sentence was later modified to only a reduction in rank due to the Soldier's diagnosis of PTSD.  

10.  He also provided a newspaper article titled "Father, sons reunite after 
36 years" which narrates the events that led to his reunion with his biological sons after 36 years.  

11.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character.  The regulation stated, in pertinent part, that recommendation for discharge because of undesirability would be made in the case of an enlisted person who (1) gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct; (2) possessed unclean habits, including repeated venereal infections; (3) repeatedly committed petty offenses not warranting trial by courts-martial; (4) was a habitual shirker; (5) was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service; or (6) demonstrated behavior, participated in activities, or associations which tended to show that he was not reliable or trustworthy.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

13.  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. 

14.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2–9, states 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's request for an upgrade of his undesirable discharge has been carefully considered.  

2.  His record is void of the facts and circumstances surrounding his discharge.  However, it does contain pay records that show an AWOL offense and that he was convicted by a special court-martial on 4 June 1958.  It also contains a properly-constituted DD Form 214 that confirms the authority for his discharge.  It also shows he accrued 484 days of lost time.

3.  Absent evidence of error or injustice, government regularity is presumed.  It is also presumed that his separation processing was accomplished in accordance with the applicable regulation, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.

4.  His record of indiscipline includes a court-martial conviction and 484 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  Based on the foregoing, it is concluded that his discharge was proper and equitable and it accurately reflects his overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.





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)                                         AR20120010193



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ABCMR Record of Proceedings (cont)                                         AR20120010193



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