IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130001950 


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 to an honorable discharge.

2.  He states his discharge was not dishonorable and it should have been changed in 6 months.  He was a minority and "his superiors didn't like minorities."  He discovered the error in 1943.  At the time, there were no rights for minorities.

3.  He provides a National Archives (NA) Form 13038 (Certification of Military Service) issued on 17 January 2013.

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 (NPRC), St. Louis, MO, in 1973.  It is believed most of his records were lost or destroyed in that fire.  This case is being considered using the document he provides and documents available in a reconstructed record.

3.  On 6 May 1942, the applicant was inducted into the Army of the United States.

4.  The Deserter's Supplemental Pay Roll of Troop A, 6th Training Squadron, Cavalry Replacement Training Center, Fort Riley, KS, for the month of August 1942 shows the applicant deserted on 2 August 1942.

5.  The Dishonorable Discharge Payroll for the same unit for the month of November 1942 shows the applicant was apprehended by military authorities on 10 September 1942.  This document also shows he was tried and found guilty of desertion and sentenced to a dishonorable discharge and forfeiture of all pay and allowances.  The conviction and sentence were promulgated in General Court-Martial Order Number 705, issued by Headquarters, Seventh Service Command, Services of Supply, Omaha, NE, dated 17 November 1942.

6.  A War Department Form 370 (Final Statement) shows he was discharged at Camp Roberts, CA, on 29 October 1943.  The form shows:

* subsequent to being sentenced to a dishonorable discharge in 1942, he was honorably restored to duty on 1 May 1943
* after being restored to duty, he was absent without leave (AWOL) during the following periods in 1943:

* 7-8 May 
* 16 May
* 31 July - 31 August

7. The War Department Form 370 also shows he was discharged "not honorably" per paragraph 5b and Section VII (Desertion) of Army Regulation 615-360 (Enlisted Men - Discharge, Release from Active Duty), and he was to be issued a "blue" discharge certificate.

8.  The available records are void of documentation indicating he was the subject of discrimination because he belonged to a minority.


9.  He provides an NA Form 13038 issued on 17 January 2013 showing his service was terminated by "other than honorable discharge."

10.  Army Regulation 615-360, in effect at the time, set forth the basic authority for the discharge of enlisted personnel.

	a.  Paragraph 5b extended authority to discharge enlisted men to the commanding officers of named general hospitals, reception centers, staging areas, ports of embarkation, and to the commanders of all administrative units and installations commanded by general officers.

	b.  Section VII authorized the discharge of deserters found physically unfit after they returned to military control.  It specified that the "blue" discharge certificate would be issued for all discharges under this section.

11.  Historical records show that the "blue" discharge was issued to individuals whose service was not dishonorable but who were not entitled to a "testimonial of honest and faithful service" as indicated by an honorable discharge.  Its use was first adapted to discharge inept enlisted personnel or those who had habits or traits of character rendering their retention in the service undesirable.  The "blue" discharge did not include a characterization of service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge.  

2.  The Army does not have nor has it ever had a policy of upgrading discharges based solely on the passage of time.  

3.  Other than his own statement, there is no documentary evidence to support his claim that "his superiors didn't like minorities" or his implication that he was unfairly subjected to discrimination because he belonged to a minority group.  In the absence of such evidence, his claim is not a basis for upgrading his discharge.

4.  The available records clearly show a history of unauthorized absences that would have warranted a less than honorable discharge.  It appears that, after returning to military control in August 1943, he was found to be physically unfit.  Accordingly, he was discharged under regulatory provisions then in effect that required issuance of a "blue" discharge to deserters found physically unfit.  The "blue" discharge did not include a characterization of service.  


5.  In the absence of evidence showing otherwise, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the discharge process.

6.  The NA Form 13038 he provides shows his service was terminated by "other than honorable discharge."  It appears he takes issue with the wording used on the form, though it does accurately describe the type of discharge he received.  

7.  Regardless of whether or not the wording accurately describes his discharge, the NA Form 13038 is not an Army record.  Therefore, even if the form did contain errors, it would not be within the purview of the ABCMR to correct it.  Any issues he has with the NA Form 13038 may be addressed by the National Archives and Records Administration.  

8.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing; therefore, his discharge was proper and equitable and it accurately reflects his overall record of service.

9.  In view of the foregoing, there is no basis for upgrading his discharge to general or an honorable 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 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)                                         AR20130001950



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ABCMR Record of Proceedings (cont)                                         AR20130001950



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