IN THE CASE OF:
BOARD DATE: 27 August 2013
DOCKET NUMBER: AR20130002302
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 general discharge be upgraded to a fully honorable discharge.
2. The applicant states that his discharge was changed to a general discharge by a private because he was being released from the stockade at Camp Kilmer, New Jersey. However, he was being discharged for hardship and should have received an honorable discharge because his discharge was never stated in a court-martial.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States).
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 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, the document provided by the applicant is sufficient to conduct a fair and impartial review of this case.
3. The applicant was inducted into the Army of the United States on 6 May 1952. He completed his training and was transferred to Korea where he served with the 223rd Infantry Regiment during one campaign and was awarded the Combat Infantryman Badge on 18 July 1953 (fighting ended on 27 July 1953). He had served 3 months and 21 days of foreign service when he was returned to the United States.
4. The facts and circumstances surrounding his discharge are not present in the available records. However, his DD Form 214 which was authenticated by an officer and the applicant shows that he was released from active duty under honorable conditions at Camp Kilmer on 4 September 1954 due to hardship under the provisions of Army Regulation 615-362. He was serving in the rank of private (E-1) with an effective date of 14 January 1954. He had served 1 year,
6 months and 19 days of active service and had 190 days of lost time due to being absent without leave (AWOL) and in confinement.
5. There is no evidence available to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards
15-year statute of limitations.
6. Army Regulation 615-362, in effect at the time, served as the authority for the separation of enlisted personnel for minority, dependency or hardship. It provided, in pertinent part, that individuals would be separated with an honorable or general discharge as deemed appropriate based on the individuals record of service at the time of separation.
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 have jeopardized his rights.
2. The type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.
3. It appears apparent based on the date of his pay grade and the fact that he had 190 days of lost time that his service did not rise to the level of a fully honorable discharge, especially given the fact that the applicant has offered no evidence or mitigating circumstances.
4. Accordingly, there appears to be no basis to upgrade his discharge to a fully honorable discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ___X__ _ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Korean War. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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.
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