IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130002935 


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 undesirable discharge.

2.  The applicant states he requests his discharge be upgraded for the purpose of obtaining Department of Veterans Affairs (VA) benefits.  He received an
Article 15 and he was dismissed with an undesirable discharge.  He has been a model citizen since leaving the service and he has not had any run-ins with authorities.

3.  The applicant provides no additional evidence.

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 the applicant’s records were destroyed in that fire.  However, a reconstructed record contains sufficient documentation for the Board to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 15 January 1955 for a period of 3 years in the rank/grade of private (PV1)/E-1.  He completed training and he was awarded military occupational specialty 161.10 (Antiaircraft Artillery Gun Crewman).

4.  The specific facts and circumstances surrounding his discharge are not available for review.  However, his reconstructed record contains a DD Form 214 (Report of Separation from the Armed Forces of the United States) that shows he was discharged on 9 September 1955 under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character) in the rank/grade of PV1/E-1 with an undesirable discharge.  He completed 20 days of net active service this period with 3 months and 17 days of other service.  He also had 217 days of time lost.

5.  Army Regulation 615-368, in effect at the time, provided the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  An undesirable discharge was normally issued.

6.  Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, provided for the discharge of enlisted personnel upon expiration of term of enlistment and set forth the general provisions governing the release from active duty of enlisted and inducted persons prior to expiration of their term of service.  Section III - Factors Governing Issuance of Honorable and General Discharge Certificates stated because the type of discharge may significantly influence the individual's civilian rights and eligibility for benefits provided by law, it is essential that all pertinent factors be considered so that the type of discharge will reflect accurately the nature of service rendered.  Both the honorable and general discharge entitles an individual so discharged to full rights and benefits.  An undesirable discharge may or may not deprive the individual of veterans benefits administered by the VA and a determination by that agency is required in each individual case to determine eligible benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention has been noted; however, the evidence of record shows he accrued a total of 217 days of time lost and he only completed 20 days of net active service.  The highest rank/grade he attained was PV1/E-1.

2.  He has not provided sufficient evidence to show his discharge was unjust.  He also has not provided sufficient evidence to mitigate the characterization of his discharge.

3.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors, which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

4.  His desire to have his undesirable discharge upgraded so that he can qualify for VA benefits is acknowledged.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130002935



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ABCMR Record of Proceedings (cont)                                         AR20130002935



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