IN THE CASE OF:
BOARD DATE: 4 January 2013
DOCKET NUMBER: AR20120010792
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 to an honorable discharge.
2. The applicant states that for the most part he was a good Soldier. He goes on to state that he did a couple of dumb things and was sent back to the United States and discharged and he has paid dearly for 60 years because of it.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) and a 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 applicants 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 applicants 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 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 that the applicant's 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.
3. The applicant enlisted in the Regular Army on 10 November 1948 for 3 years. He completed his training and was transferred overseas for assignment to Battery B, 75th Field Artillery Battalion.
4. The facts and circumstances surrounding his administrative discharge are not present in the available records; however, his records show that he was returned to Fort Dix, New Jersey and was discharged under other than honorable conditions on 13 September 1950 under the provisions of Army Regulation 615-368 for unfitness due to habits rendering his retention in the service as undesirable. He had served 1 year, 10 months, and 3 days of active service.
5. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 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. An undesirable discharge was normally considered appropriate.
7. Army Regulation 635-200, 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.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2. Accordingly, it is also presumed the type of discharge directed and the reasons therefore were appropriate given the information contained in the available records.
3. It should also be noted that the Board does not upgrade discharges simply based on the passage of time and the applicant has not provided any mitigating circumstances that warrant an upgrade of his discharge.
4. Accordingly, there appears to be no basis to grant his request for an upgrade of his discharge to either honorable or general.
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) AR20120010792
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ABCMR Record of Proceedings (cont) AR20120010792
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