BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120019322 


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, in effect, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he was told to go to New Jersey with his friends.  He agreed and was told a letter would be sent to reenlist him.  When he arrived in New Jersey, there was no letter and he was informed he would have to be retrained, so he left.  He believes the Army broke their promise by never putting the letter in his file.  For his own peace of mind and for medical benefits, he wants the record corrected to show he served his country honorably.

3.  The applicant provides:

* WD AGO Form 53-59 (Enlisted Record and Report of Separation – Undesirable Discharge)
* U.S. Army Undesirable Discharge Certificate
* U.S. Navy Honorable Discharge Certificate
* a record of U.S. Naval Service
* a letter from the Board for Correction of Naval Records, dated 
26 September 2012

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 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.  This case is being considered using reconstructed records that primarily consist of the applicant's WD AGO Form
53-59 and documents pertaining to the review of his discharge that were conducted by the Army Discharge Review Board (ADRB) on 7 December 1950 and again on 15 November 1962.

3.  Having 1 year, 9 months, and 23 days of prior honorable enlisted service in the U.S. Navy, the applicant enlisted in the Regular Army (RA) for a period of
3 years at Harrisburg, PA, on 13 July 1948 in the rank/grade of private (PV1)/E-1.

4.  His WD AGO Form 53-59 shows he was discharged on 17 June 1949 under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits and Traits of Character)) with the issuance of an Undesirable Discharge Certificate.  He completed 4 months and 10 days of net active service with 205 day of time lost due to being absent without leave (AWOL) and in confinement.

5.  The applicant's record contains several documents pertaining to ADRB Docket Number 8915, dated 7 December 1950.  These documents show the applicant:

* appeared to have a personal dislike for having to go to basic training after 2 years in the Navy
* stated in sworn testimony the "reason he goes AWOL is he just can't stand the Army"
* was AWOL on 6 occasions for a total of 86 days and he was confined twice for a total of 119 days
* received three court-martial convictions
* received an undesirable discharge on 17 June 1949 for unfitness

6.  On 15 November 1962, the applicant and his counsel appealed the applicant's undesirable discharge and received a rehearing of ADRB Docket Number 8915, dated 7 December 1950.  An Office of the Secretary of the Army Form 62 (ADRB Rationale) confirms comments from counsel were considered; however, the applicant was AWOL, he did not want to soldier, and wanted out of the Army any way possible.  The ADRB concluded the applicant was properly and equitably discharged and his appeal was denied.

7.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, sets forth the general provisions governing the discharge 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states 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.  Notwithstanding the applicant's desire to show he served his country honorably, the evidence shows the applicant was AWOL on numerous occasions, he received more than one conviction by court-martial, and he was subsequently separated for unfitness on 17 June 1949 with an undesirable discharge.

2.  In the absence of evidence to the contrary it is presumed he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  

3.  The applicant's record of service shows he was routinely AWOL, twice confined, and accumulated 205 days of time lost.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general discharge.
4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the 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.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.
 
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)                                         AR20120019322



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ABCMR Record of Proceedings (cont)                                         AR20120019322



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